Key Benefits:
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Proposal for Law No 260 /XII
Exhibition of Motives
The Directive No 2011 /61/UE, of the European Parliament and of the Council of June 8 of
2011, concerning the managers of alternative investment funds (Directive
n. 2011 /61/UE), establishes common requirements for the authorization and supervision of such
managers, with a view to creating a regulatory and supervisory framework
harmonized of the activities by them exerted in the European Union, including those with
registered in a Member State and those with registered office in a third country, associated with the forecast of the
passport regime of the management activity and marketing of bodies of
alternative investment.
In this context, the transposition of the Directive No 2011 /61/UE determines the revision of the scheme
national relating to the management of collective investment bodies not covered by the
Directive No 2009 /65/CE, of the European Parliament and of the Council of July 13, 2009
(Directive No 2009 /65/CE), which coordinates the laws, regulations and
administrative relating to some collective investment bodies in values
securities, to which it was transposed by the Decree-Law No. 63-A/2013 of May 10, which
approved the Legal Regime of Collective Investment Organisms.
In terms of matters covered by Directive No 2011 /61/UE are in particular in
cause those regarding remunerative policies and practices, subcontracting, depositories and
transparency.
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Attentive to the need to appropriate the Legal Regime of Investment Organisms
Collective, approved by the Decree-Law No. 63-A/2013, of May 10 and the Legal Regime
of the Real estate Investment Funds, approved by the Decree-Law No. 60/2002, of 20 of
march, to those changes occurring at the level of the law of the European Union, this Law
approves the General Regime of Collective Investment Organisms (General Regime),
transposing, partially, for the national regime to Directive No 2011 /61/UE.
Once the General Regime inherits the matter of the Legal Regime of the Organisms of
Collective Investment, approved by the Decree-Law No. 63-A/2013, of May 10, is still
transposed, partially, the Directive No 2013 /14/UE, the European Parliament and the
Council, of May 21, 2013 (Directive No 2013 /14/UE), as regards the
excessive reliance on the ratings of risk and amending the Directive
n. 2003 /41/CE concerning the activities and supervision of the institutions of realization of
professional pension plans, Directive No 2009 /65/CE and Directive No 2011 /61/UE.
The General Regime that comes to be adopted is the normative domains of the Legal Regime
of the Collective Investment Bodies, approved by the Decree-Law No. 63-A/2013, of
May 10 and of the Legal Regime of the Real estate Investment Funds, approved by the
Decree-Law No. 60/2002 of March 20. Although it revokes the diplomas that approved the
referred to as schemes, the General Regime maintains, however, the systematic structure of the Regime
Legal of Collective Investment Organisms, approved by the Decree-Law
n 63-A/2013, of May 10. Additionally and, save few exceptions, keep the
solutions that have been adopted in that legal regime for the investment bodies
collective and respect entities responsible for the management subject to their scope,
especially the subjects that were the subject of transposition of Directive No 2009 /65/CE
through the Decree-Law No. 63-A/2013 of May 10 on it incorporating the subjects of the
Legal Regime for Real Estate Investment Funds, approved by the Decree-Law
n. 60/2002, of March 20 and reviewing some of the options in force.
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The said unification of regimes is justified by reasons of simplification and consistency
regulatory.
The collective investment bodies object of these two legal regimes pass the
subjecting itself to a same low of minimum requirements. Suprimemse, in this way,
overlaps and unjustifiably distinct legal requirements, depending on whether it is
investment bodies in securities, in non-financial assets or in assets
real estate.
In accordance with Directive No 2011 /61/UE, the General Regime provides that the
alternative investment body is any collective investment body
that is not a collective investment body in securities. The organisms of
alternative investment subject to the General Regime include the investment bodies
alternative in securities, real estate investment bodies and the
investment bodies in non-financial assets. In consequence, the funds of
real estate investment and real estate investment corporations become subject to the
General Regime.
Notwithstanding the notion of alternative investment body envisaged in the Directive
n. 2011 /61/UE include the investment bodies in venture capital, the subject matter of
venture capital remains in an autonomous degree, which is reviewed and goes on to integrate the
new subjects from social entrepreneurship and specialist alternative investment,
being consequently approved a new legal regime.
This option allows to keep the regime contained in the Decree-Law No. 375/2007, 8 of
november, revised in strictly necessary to adjust to the requirements of the Directive
n. 2011 /61/UE, in particular with regard to the management of investment bodies
in capital of risk that falls within the scope of this directive, i.e.
when the amounts under management exceed the relevant thresholds in it.
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In this way, the transposition of Directive No 2011 /61/UE and Directive No 2013 /14/UE
only gets complete with the approval of the new Legal Regime of the Capital of Risk, of the
Social Entrepreneurship and Specialized Investment and the present General Regime.
It is stressed that despite the matter of venture capital to be kept in autonomous diploma, the
General Regime retains the possibility of investment fund holding companies
furnishings manage, by way of accessory, venture capital funds, the one that is now increased, the
possibility of managing, the main title, funds of social entrepreneurship.
Directive No 2011 /61/UE introduces requirements as to the management of the bodies of
alternative investment, highlighting those respecting asset valuation, policy of
remuneration and depositories which, by their importance, the General Regime extends to the
collective investment bodies in securities. Underline that this extension
anticipates, to a large extent and with respect to the latter two themes, the resulting solutions
of the changes made to Directive No 2009 /65/CE by the Directive No 2014 /91/UE, of the
European Parliament and of the Council of July 23, 2014.
In the evaluation of assets, it establishes itself as a general principle, applicable to all organisms
of collective investment, the requirement for the establishment of appropriate procedures and
coherent for a correct and independent valuation of the assets under management, by the
resource to internal and external evaluators. In case of evaluation by the entity's respect
responsible for the management, the service responsible for the evaluation must be functionally
independent of the management of the collective investment body. In this case, the Commission of the
Securities Market (CMVM) may require that the assessment procedures
are verified by an auditor registered in the CMVM, or by another external evaluator. In
external evaluation case, the evaluator should be a natural or a collective person
independent of the collective investment body, of the responsible entity responsible
by the management and of any other person with close relations with the body of
collective investment or the respected entity managing entity.
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Although it does not decorate directly from Directive No 2011 /61/UE, it is going to require that the
real estate that integrate the heritage of collective investment bodies are
compulsorily assessed by two external evaluators, designated " evaluator experts
of real estate ", leaving there to be discretion of the managing entities in the valorisation:
this is effected by the simple average of the values assigned by each of the experts
real estate evaluators. However, if the values assigned by each of the experts
evaluators differ with each other more than 20%, by reference to the lower value, the real estate
will be the subject of new assessment by a third real estate evaluator, in which case the
immovable is valued by the simple average of the two valuation values that are more
next to each other.
Within the framework of the remuneration policy, the General Regime obliges, in accordance with the
Directive No. 2011 /61/UE, the entities responsible for the management of bodies of
collective investment to adopt policies and practices that promote sound management and
effective risks and that are appropriate to the risk profiles of the bodies under management, to the
size and internal organisation of the managing entity, and to nature, scope and complexity
of your activities.
Regarding the depository activity of collective investment bodies, until here
limited to credit institutions, widens access to the same to investment firms
authorized to provide the service of registration and deposit of financial instruments, provided that
are subject to the requirements of own funds applicable to credit institutions in the
terms of Regulation (EU) No 575/2013, of the European Parliament and of the Council, of 26
of June 2013, concerning the prudential requirements for credit institutions and for
the investment companies. Compliance with such requirements is indispensable condition
for the effective control of the risks inherent in the function of depository, reason why it opts
for not extending this access to other entities provided for in Directive No 2011 /61/UE.
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The liability regime of the depositary is developed before the responsible entity
by the management and before the participants, in particular by the loss, by you or by third party
subcontractor, of financial instruments entrusted to your guard. It clarifies, still, the
liability of the depositary as to the guard of non-financial assets, owing in this
scope check the entitlements of rights in relation to assets that integrate heritage
of the collective investment body and keep an updated record of them.
The General Regime strengthens the independence of the depositary through the prediction of rules that
aim to prevent the occurrence of conflicts of interest between the depositary, the entity
responsible for the management and participants of the collective investment body. In this
scope, the general principle is provided that the depositary may not engage in activities
relating to the collective investment body or the entity responsible for the management which
be able to create conflicts of interest among the participants, the entity responsible for
management and the depositary itself.
As for the subcontracting of the asset guard by the depositary, the conditions are defined
of which it depends on its admissibility.
In relation to cross-border connections, it is enshrined, in line with the Directive
n. 2011 /61/UE, the European passport for the management and marketing of bodies of
alternative investment domiciled in other Member States, provided that such
organisms to be managed by authorized managing entities under the Directive
n. 2011 /61/UE and are marketed exclusively to investors
qualified.
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The General Regime further provides for the enlargement of the European passport to the managing entities of the
European Union to market alternative investment bodies from countries
third parties in the European Union and, as well, to the managing entities of third countries
authorized in a Member State that manage or commercialize bodies of
alternative investment in the European Union. For this purpose, the requirements are defined
for the qualification of Portugal as a Member State of reference of managing entities
of third countries, as well as the authorisation regime of those entities in Portugal. The
scheme indicated only if it is intended to enter into force under the conditions set out in act
delegate of the European Commission, to be issued in October 2015.
Until such time as the European passport scheme is extended to third countries, the
which will occur in definite terms in 2018, Member States may provide for schemes
national, without a passport. Thus, it was chosen to predict the marketing, by entities
authorised gestures in Portugal or in another Member State, only in Portugal and
exclusively together with qualified investors, from investment bodies
alternative country alternative by you managed and alternative investment bodies of
food of the European Union whose alternative investment body of type
principal is neither constituted nor managed by the European Union's managing entity, not if
choosing to allow such marketing by entities managing third countries.
It remains the scheme provided for in the Legal Regime of Investment Organisms
Collective, approved by the Decree-Law No. 63-A/2013 of May 10, for the bodies of
foreign alternative investment marketed to investors not
qualified, which are subject to authorization from the CMVM. This regime continues to be the
better way to assure Portuguese retail investors a level of safety and
of protection analogous to that of the alternative investment bodies authorized in
Portugal.
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By virtue of Directive No 2011 /61/UE, relative informative requirements are introduced
at the level of risk and leveraging of the alternative investment bodies, information
which is to be used by CMVM and the Bank of Portugal, as an authority
macroprudential, to assess the extent to which the resource to the leverage contributes
for the accumulation of systemic risks in the financial system, of risks of disturbance in the
markets or risks for the long term growth of the economy.
Additionally, acquisitions of qualifying holdings by bodies of
alternative investment in unlisted companies become subject to notification duties
to CMVM. When the acquisition translates into the assumption of a control position, they are
anticipated additional informational duties of the entity responsible for the management of the CMVM,
including to the society itself and to known shareholders.
With respect to pre-contractual information requirements, the new rules predict a
specific informative document for the alternative investment bodies directed
exclusively to qualified investors.
It is yet to be taken to clarify the principle of autonomy or heritage segregation
between the collective investment bodies and the participating respects, establishing-
if unambigually that these do not respond by the debts of those.
On the other hand, the general principle is expressly provided that the responsible entity
by the management cannot, on account of the collective investment body that manages, accept the
provision of guarantees or the granting of credit by participants of the same body,
so if contributing to avoid situations of conflicts of interest.
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In the matter of real estate investment bodies is justified to change the scheme of the
open real estate investment bodies, specifically in the field of subjects
of the composition of the heritage and the conditions of rescue. More specifically, the Regime
General presents three key innovations: the introduction of special rules on
liquidity and limits of these open bodies, the establishment of specific periods
for subscriptions and rescues, in articulation with the introduction of pre-notice rules of
rescue and minimum periods of investment, and the prediction of rules on the suspension of the
rescue and underwriting operations in the event of insufficient liquidity, following the
changes to the level of the rescue periods.
These changes seek to ensure that the possibility of rescue of the units of
participation in these bodies does not make their management excessively difficult nor onera
too much the participants who wish to keep their investment, thus donating them
entities responsible for the management and investors of a regime that allows, at the same time
time, the exposure to the real estate sector and an investment with periods of commitment
relatively short.
Attentive to the goals that preside over the normative unification effected by the General Regime, this
passes yet to contain the discipline of special real estate investment bodies, until
now regulated in the Regulation of CMVM No 8/2002, published in the Journal of the Republic ,
2 th series, paragraph 138, of June 18, 2002.
With respect to sanctionatory standards, the General Regime adopts a regime-noun
and procedural-autonomous and specific. This body of standards is very close to the regime
sanctionatory provided for in the Securities Code, approved by the Decree-Law
n. 486/99 of November 13 in its substantive and procedural strand, and aims to give
compliance with the principles of legality and equality, ensuring a unitary regime
for the illicit, regardless of the counterordinational competence being of the Bank of
Portugal or the CMVM, which will depend not only on the illicit itself as well, on some
cases, of the nature of the entity concerned.
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The unlawful ones of mere social ordering described in the General Regime are qualified as
serious or very serious to the similarity of the envisaged in the General Regime of Institutions of
Credit and Financial Societies, approved by the Decree-Law No. 298/92, of 31 of
december.
The General Regime is complemented by the rules provided for in the delegated and implementing acts
of Directive No 2011 /61/UE, specifically the Delegated Regulation (EU)
n 231/2013 of the European Commission of December 19, 2012 with regard to the
exemptions, general conditions of operation, depositories, leverage effect,
transparency and supervision, the Commission Implementing Regulation (EU) No 447/2013, of the Commission
European, May 15, 2013, which sets out the procedures for the managers of
alternative investment bodies that choose to be covered by the Directive
2011 /61/UE, and the Implementing Regulation (EU) No 448/2013, of the European Commission, of
May 15, 2013, which sets out a procedure to determine the Member State
of reference of an alternative investment body manager of third country in the
the terms of Directive No 2011 /61/UE. In the field of organisation and operation note-if
that some standards are already contemplated in the Legal Regime of the Organisms of
Collective Investment, approved by the Decree-Law No. 63-A/2013, of May 10 and in the
Code of Securities, approved by the Decree-Law No. 486/99, of 13 of
november, albeit with a wider scope of application pores applicable to
any collective investment body or to any financial intermediary.
In the implementation of the General Regime it is still essential to consider the guidelines of the Authority
European Securities and Markets in this scope, to the extent that
clarify and need many of the standards with origin in the right of the European Union.
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The transposition of the Directive No 2011 /61/UE and No 2013 /14/UE obliges, finally, to
introduction of changes in the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92 of December 31, inter alia
as to the definitions of the managing company of investment funds furnishing and
society manager of real estate investment funds, the authorization procedure
of those holding companies to the Bank of Portugal and to the passport regime
European relative to the management activity of alternative investment bodies by
managing entities of the European Union.
Various provisions of the Securities Code are also amended, approved
by the Decree-Law No. 486/99 of November 13, reaching the subject of the registration with the
CMVM, as financial intermediaries, of the entities that manage bodies of
alternative investment.
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 Investment Funds, Pensions and Patronians, the Association
Portuguese Capital of Risk and Development, the Portuguese Association of Banks,
the Portuguese Association of Insurance and the National Commission for Data Protection.
The hearing of the National Consumption Council was promoted.
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:
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Article 1.
Object
1-A This Law, partially transposes to the internal legal order:
a) The Directive No 2011 /61/UE, of the European Parliament and of the Council, of 8 of
June 2011, concerning the managers of alternative investment funds and that
aments to Directive No 2003 /41/CE, of the European Parliament and of the Council, of 3 of
June 2003, the Directive No 2009 /65/CE, of the European Parliament and of the
Council, of July 13, 2009, the Regulation (EC) No 1060/2009 of the
European Parliament and of the Council of September 16, 2009 and the Regulation
(EU) No 1095/2010, of the European Parliament and of the Council, of November 24
of 2010;
b) The Directive No 2013 /14/UE, of the European Parliament and of the Council, of 21 of
may 2013, concerning managers of alternative investment funds in what
concerns excessive reliance on risk ratings and that
aments to Directive No 2003 /41/CE, of the European Parliament and of the Council, of 3 of
June 2003, concerning the activities and supervision of the institutions of achievement
of occupational pension plans, the Directive No 2009 /65/CE, of Parliament
European and Council, of July 13, 2009, which coordinates the provisions
legislative, regulatory and administrative provisions relating to some bodies of
collective investment in securities and the Directive No 2011 /61/UE, of the
European Parliament and of the Council of June 8, 2011.
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2-In realization of the provisions of the preceding paragraph, the present law proceeds to:
a) A review of the legal regime of collective investment bodies, approved
by the Decree-Law No. 63-A/2013 of May 10, approving the General Regime of the
Collective Investment Organs, in which the matter of the
real estate investment bodies;
b) Amendment of the General Regime of Credit Institutions and Financial Societies,
approved by Decree-Law No 298/92 of December 31;
c) Amendment of the Securities Code, approved by the Decree-Law
n. 486/99, of November 13.
Article 2.
Approval of the General Regime of Collective Investment Organisms
It is hereby approved, in annex to this Act and that it forms an integral part, the General Regime of the
Collective Investment Bodies, hereinafter abbreviated as General Regime.
Article 3.
Amendment to the General Regime of Credit Institutions and Financial Societies
Articles 20, 199.-A and 199.-L of the General Regime of Credit Institutions and
Financial Societies, approved by the Decree-Law No. 298/92 of December 31, pass
to have the following essay:
" Article 20.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
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d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) Society does not demonstrate having the capacity to fulfill the duties
established in the present General Regime and in particular regime that
be applicable to you.
2-[...].
3-[...].
Article 199-The
[...]
[...]
1. [...];
2. [...];
3. [...];
4. [...];
5. [...];
6. "Management society of furniture investment funds", the society
whose usual activity consisted in the management of investment bodies
collective;
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7. "The managing society of real estate investment funds", the society
whose usual activity consisted in the management of investment bodies
real estate.
Article 199-L
Regime of the managing companies of investment funds furnishings and of the
societies managing real estate investment funds
1-To the managing companies of investment funds furniture and the
corporate investment fund management companies apply the
provisions of this Title, with the exception of point 5 of Article 199-A and
of Articles 199-C to 199.-H, extending 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-Title II shall apply, with the necessary adaptations, to the gestural societies
of furniture investment funds and the managing companies of funds of
real estate investment with registered office in Portugal, with the following
modifications:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
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f) The relevant period for the purposes of the provisions of Article 19 (1) is to
three months from the date of the full application's payout,
extended for another three months by decision of the Bank of Portugal, the
count of the notification to the applicant, when the circumstances
specific to the request to be justified;
g) The managing companies must notify the Bank in advance.
Portugal, of any substantial changes in the initial conditions of
authorization, particularly changes as to information
provided under the terms of the ( i ) of Article 14 (1) of the paragraphs b )
and c ) of paragraph 1, of the points a) a c ) of Article 17 (2) and 4 (4) of the
articles 20, 30 to 34, paragraph 34 h ) of Article 66, and of Articles 69,
70. and 102 to 111.
3-The changes referred to in paragraph g ) of the previous number consider themselves
authorized, within one month of the date on which the Bank of
Portugal receive the application, save if it considers necessary due to the
circumstances specific to the case and after having notified the societies
gestures from that fact extend the deadline by another month, and finesse that deadline
the Bank of Portugal nothing objected.
4-The establishment of branches and the provision of services in others
Member States of the European Union by holding company of funds of
investment furnishing with registered office in Portugal whose usual activity
consists in the management of UCITS is governed, with the necessary adaptations, by the
provisions of Article 36 (1), Article 37, and Articles 38 and 39, para.
n Article 40 (1) and in Article 43, with the following modifications:
a) [...];
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b) [...];
c) [...];
d) [...];
e) [...];
f) [...].
g) [...];
h) The communication referred to in Article 40 (1) shall be made
also to the Securities Market Committee, one month
before it produced effects, so as to allow the
Commission pronouns on the amendment, either with the authority
competent from the host Member State, or from the
managing company of investment funds furnishings;
i) [...].
5-The establishment of branches and the provision of services, in Portugal, by
corporate management of investment funds with registered office in
other Member States of the European Union whose usual activity
consists in the management of UCITS is governed, with the necessary adaptations, by the
arranged in Articles 44, 46 to 56, 60 and 61 with the modifications
following:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...]
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f) [...];
g) [...].
6-The establishment of branches and the provision of services in others
Member States of the European Union by holding company of funds of
investment furnishings, whose usual activity consists of the management of
alternative investment bodies, or by managing companies of
real estate investment funds with registered office in Portugal are governed by the
provisions of Article 36 (1), Article 37, 39, paragraph 1, no para.
1 of Article 40 and in Article 43, with the following modifications:
a) The notifications referred to in Article 36 (1) and in paragraph 1 of the
article 43 must also be made to the Market Committee of
Securities;
b) The communications and certifications referred to in Article 37 (1), and in the
n Article 43 (2) are transmitted to the supervisory authority of the
Host Member State by the Committee on the Market
Securities, after appearing favorable by the Bank of Portugal that
is pronounced within 20 days and only takes place if the Commission of the
Securities Market to consider that the management of the
alternative investment body complies, and will continue to
comply, the provisions of the General Regime of the Organisms of
Collective Investment;
c) The communication referred to in Article 37 (1) shall be effected in the
period of two months;
d) The statement of reasons for the decision to refuse, referred to in paragraph 2 of the
article 38, shall be notified to the institution concerned within the period of
two months;
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e) The communication provided for in Article 40 (1) shall be made to the Bank of
Portugal and the Commission of the Securities Market, with the
less one month in advance in relation to the date of respect
production of effects, in the case of planned changes, or
immediately in the case of unforeseen changes;
f) In Articles 39 and 43, the reference to the listed transactions
append to Directive No 2013 /36/UE, the European Parliament and the
Council, of June 26, 2013, is replaced by the reference to
activity and services listed in Annex I of the Directive
n. 2011 /61/UE, of the European Parliament and of the Council, of 8 of
June 2011.
7-The managing companies can initiate the provision of services in the states-
Host members from the date on which they are informed of the
transmission to the competent authority of that Member State of the
communications provided for in ( b ) of the previous number.
8-Received the communication provided for in the letter and ) of paragraph 5 and checking that
the foreseen changes imply a management of the investment body
alternative in violation of the provisions of the General Regime of the Organisms of
Collective Investment, or that the gestures society does not comply with the
rules that are applicable to it, the Securities Market Commission
Securities must, after consultation with the Bank of Portugal, notify in time
useful the holding company that the foreseen changes may not be
adopted.
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9-A The Securities Market Committee shall take the measures that
to suit the situation in question, including, if necessary, the ban
express from the marketing of the units of participation of the body of
alternative investment, when:
a) The managing company shall carry out the changes provided for in violation of the
terms of the notification made by the Stock Market Commission
Securities under the provisions of paragraph 6;
b) Unforeseen changes occur with the consequences referred to in the
previous number; or
c) If you check that the managing company does not comply with the provisions of the
General Regime of Collective Investment Organisms.
10-A The Securities Market Committee immediately informs them
competent authorities of the host Member States of the
society gestures to the changes to which the Bank of Portugal and the Commission
of the Securities Market do not object.
11-The establishment of branches and the provision of services, in Portugal, by
corporate fund management of investment funds whose activity
usual to consist of the management of alternative investment bodies and
corporate managing companies of real estate investment funds based in
other Member States of the European Union shall be preceded by
notification to the Commission of the Securities Market containing the
expected elements:
a) In Article 60, dealing with provision of services;
b) In the points a ) a c ) of Article 49, dealing with the establishment of
branch.
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12-The holding companies of furniture investment funds and the
corporate managing companies of real estate investment funds based in
Portugal to carry out the activities referred to in paragraph g ) of paragraph 3 and in the
point ( f ) of paragraph 5 in the territory of another Member State of the European Union
in freedom to provide services shall be subject to Portuguese law,
in particular with respect to the rules of conduct, including in what
respects conflicts of interest.
13-The holding companies of furniture investment funds and the
corporate managing companies of real estate investment funds based in
Portugal to exercise the management activity of OICVM and body of
real estate investment, respectively, in the territory of another state-
Member of the European Union upon the establishment of a branch,
become subject to Portuguese law with respect to their organisation, including
the subcontracting rules, the risk management procedures, the
prudential and supervisory rules and the obligations of notification.
14-The Bank of Portugal and the Commission of the Securities Market are
responsible for the supervision of compliance with the rules referred to in the
n. paragraphs 11 and 12, and shall further ensure that the managing company is apt to
to comply with the obligations and standards relating to the constitution and operation
of all the collective investment bodies per se managed.
15-The activities of the managing companies of investment funds Furniture
and of the managing societies of real estate investment funds with registered office
in another Member State of the European Union who carry out activities in
Portugal upon the establishment of a branch shall be subject to the
rules of conduct, including with respect to conflicts of interest, the
provided for in Portuguese legislation. "
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Article 4.
Amendment to the Securities Code
Articles 289, 295, 298 and 359 of the Securities Code, approved by the
Decree-Law No. 486/99 of November 13, they pass the following essay:
" Article 289.
[...]
1-[...]:
a) [...];
b) [...];
c) The management of the following collective investment institutions:
i) Collective investment bodies in securities;
ii) Alternative investment bodies in securities
and investment bodies in non-financial assets;
iii) Real estate investment bodies;
iv) Investment bodies in venture capital, bodies of
social entrepreneurship and investment bodies
specialized alternative; and
v) Funds for securitisation of credits;
d) The exercise of the functions of depositary of financial instruments
that integrate the heritage of collective investment institutions
referred to in the preceding paragraph.
2-[...].
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3-[...].
4-[...].
5-[...].
Article 295.
[...]
1-[...].
2-[...].
3-[...].
4-A CMVM communicates to the European Securities Authority and the
Markets:
a) The registration of investment firms and credit institutions that
provide services or exercise investment activities;
b) The registration of investment fund managing companies
furniture and furnishing investment companies that manage
collective investment bodies in securities; and
c) Quarterly, the registration of managing entities of bodies of
alternative investment and alternative investment bodies
in self-managed society-shaped form, and the cancellation decisions of
registration relating to such entities and bodies.
Article 298.
[...]
1-[...].
2-[...].
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3-[...].
4-It is not chargeable to submit the documents that are already together with the
CMVM or may this be able to obtain in official publications or from the
national authority that granted the authorization or to whom the authorization was
communicated, as long as the same ones keep updated.
5-[...].
Article 359.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) Auditors registered in the CMVM;
g) [...];
h) Venture capital societies, entrepreneurship societies
social and specialized alternative investment societies;
i) [...];
j) [...];
k) [...].
2-[...].
3-[...]. "
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Article 5.
Transitional provisions
1-The entities responsible for the management whose activity includes the management of bodies of
alternative investment at the date of entry into force of this Law, must take all
the measures necessary to comply with the provisions of that General Regime, up to three months after
the date of entry into force.
2-The entities referred to in the preceding paragraph shall still, within the period referred to therein,
require:
a) New authorisation and registration with the Bank of Portugal, with respect to
managing companies of investment funds;
b) New registration with the Securities Market Commission (CMVM),
with respect to holding companies of investment funds;
c) Authorisation with the CMVM, with respect to investment bodies
collective in a society-shaped form.
3-The provisions of the General Regime approved in annex to this Law, as to the management and
marketing of units of participation of alternative investment bodies
in the European Union, by entities responsible for the management and managing entities of the
European Union, does not apply to the marketing of units of participation in the
alternative investment bodies object of an ongoing public offering at the date of
entry into force of this Law, carried out on the basis of a prospeit in advance
drawn up and published in accordance with the provisions of Articles 134 or 236 of the Code of
Securities, approved by the Decree-Law No. 486/99 of November 13, and
as long as such a prospeit is valid.
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4-Notwithstanding the provisions of paragraphs 1 and 2, the entities referred to in paragraph 1 that they manage, at the date
of entry into force of this Law, alternative investment bodies closed
can maintain the management of these organisms with no need to apply for new
authorization and registration, provided that they do not carry out any additional investment after that
date.
5-The entities referred to in paragraph 1 that manage alternative investment bodies
closed whose subscription period has expired before July 22, 2013 and which
have been constituted for a period of time with term up to three years after that
date may continue to manage such bodies pursuant to the schemes applicable to the date
of the entry into force of this Law, without a need to comply with the provisions of the Regime
General, with the exception of the one provided for in the a ) of Article 160 (1) and, if it is the case, of the
articles 224 to 228, or submit application for permission.
6-The applications for authorization of collective investment bodies and entities
responsible for the outstanding management at the date of the entry into force of this Law shall
appropriate to it disposed of.
7-Without prejudice to the provisions of paragraphs 8 and 9, the real estate investment bodies
open existing at the date of the entry into force of this Law must adapt to the
provisions of the General Regime approved in annex to this diploma, relating to
subscriptions and rescues and the composition of the heritage within six months of
of that date, save with regard to the rescue of already issued share units.
8-Existing open real estate investment bodies at the date of entry into
vigour of this Law may hold the construction or rehabilitation projects of
real estate that departs on that date until the completion of the respective works.
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9-Existing open real estate investment bodies at the date of entry into
vigour of this Law shall have a period of 36 months from that date to divest
any land they detain or to complete construction projects that
are adstrites that start in the year following that date, without prejudice to the CMVM, the
request of the entity responsible for the management, to be able to authorize the extension of this period.
10-Real estate valuation deadlines set out in paragraph 10 a ) of Article 144 (1) of the
General Regime approved in annex to this Law, count as of the date of entry
in force of this diploma, save if the mandatory valorisation following under the
legal regime provided for in paragraph a ) of the following article and respect regulation for
due in a shorter term, in which case those deadlines only apply after this
valuation.
11-The provisions of paragraph 144 to 7 of Article 144 of the General Regime approved in annex to the
present law, it applies, in a phased and progressive manner, to the valorisation of the whole of
real estate that integrate the heritage of real estate investment bodies at the date of
entry into force of this diploma, in accordance with the terms to be defined in regulation of the CMVM.
12-Article 237 of the General Regime approved in the annex to this Law, shall cend its duration
on the date set in the terms of the delegated act to be adopted by the Commission pursuant to the
n Article 68 (6) of Directive No 2011 /61/UE, of the European Parliament and of the
Council, of June 8, 2011.
13-Legal or contractual remissions for the legal regime of investment funds
real estate and for the legal regime of collective investment bodies
consider themselves to be made for the equivalent provisions of the General Regime approved in
annex to this Law, with the necessary adaptations.
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Article 6.
Abrogation standard
They are revoked:
a) Without prejudice to the provisions of paragraph 10 of the preceding Article, the legal regime of the
real estate investment funds, approved by the Decree-Law No. 60/2002, of
March 20, amended by the Decrees-Laws No 252/2003 of October 17,
13/2005, of January 7, 357-A/2007, of October 31, 211-A/2008, of 3 of
november, and 71/2010, of June 18;
b) The legal regime of collective investment bodies, approved by the
Decree-Law No 63-A/2013 of May 10.
Article 7.
Entry into force
1-Without prejudice to the provisions of the following paragraphs, this Law shall enter into force 30 days
after its publication.
2-Paragraphs 2 a to 7 of Article 144 and paragraphs 2 a to 4 of Article 145 of the General Approved Scheme
in annex to this Law, they only produce effects decorated six months after the date of
entry into force of this diploma.
3-On the date set by the delegated act to be adopted by the Commission under the terms of paragraph 6 of the
Article 67 of Directive No 2011 /61/UE, of the European Parliament and of the Council, of 8 of
June 2011, the provisions of the General Regime shall enter into force with regard to:
a) Marketing of alternative investment bodies from third countries in the
European Union, by entities responsible for the management and managing entities of the
European Union;
b) Authorization and supervision of managing entities of third countries;
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c) Marketing of alternative investment bodies of the European Union and of
third countries in the European Union by entities managing third countries
authorized in Portugal; and
d) Management of alternative investment bodies of the European Union in State-
Member other than the Member State of reference by country manager entity
third authorized in Portugal.
4-CMVM regulations necessary for the implementation of the General Regime come into force
on the business day following the entry into force of the same, without prejudice to being published
beforehand.
Seen and approved in Council of Ministers of November 13, 2014
The Prime Minister
The Minister of the Presidency and Parliamentary Affairs
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ANNEX
(referred to in Article 2)
General Regime of Collective Investment Organisms
Title I
From collective investment bodies
CHAPTER I
General provisions
Article 1.
Scope of material application
1-The present General Regime regulates collective investment institutions, hereafter
designated by "collective investment bodies".
2-Register by special legislation:
a) The investment bodies in venture capital, the funds of
social entrepreneurship and alternative investment bodies
specialized;
b) Pension funds, without prejudice to the subjection of open pension funds of
individual adherence to the duty to draw up and make the document available with
key information aimed at investors, the duty to provide
information to the participants and the rules regarding advertising, in the terms
defined in a regulation of the Securities Market Commission
(CMVM);
c) The securitisation funds of credits, the heritage management funds
real estate, public funds earmarked for the financing of systems of
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social security and retirement pension schemes.
3-Without prejudice to the provisions of this General Regime and in respect of regulation, they are
subsidally applicable to the provisions of the Securities Code, approved
by Decree-Law No. 486/99, of November 13, and of the respect of regulation.
4-The closed alternative investment bodies that are not constituted
upon public offer only become subject to the specifically applicable rules, well
as to the remaining rules of the present General Regime that are appropriate to the character
particular of the underwriting.
5-The alternative investment bodies in which there is obtaining capital
exclusively together with qualified investors become subject to the rules
specifically applicable, as well as the remaining rules of the present General Regime that
are suitable for the segment of investors to which these are intended.
6-When in the present General Regime they impose duties or impugn actuations or
intentions to collective investment bodies, must understand themselves as subjects of the
duty to the entities responsible for the management, unless another sense results from the provision
in cause.
7-To the entity responsible for the management that manages only investment bodies
collective whose only participants are either their own or their parent companies, their
subsidiaries or other subsidiaries of the parent companies-mother and the investment body
collective in this situation, does not apply the regime concerning the activity and marketing to
level of the European Union, provided that none of the participants is a body of
collective investment.
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Article 2.
Definitions
1-For the purposes of the provisions of this General Regime, it shall be understood by:
a) "Real Estate assets", real estate, units of participation in bodies of
real estate investment and social equities in real estate companies;
b) "initial capital", the sum of the elements referred to in points a ) a and ) of the Article 1 (1)
26. of Regulation (EU) No 575/2013, of the European Parliament and of the Council,
of June 26;
c) "Commercialization", the activity directed at investors, in the sense of divulging to
subscription effects or to propose the subscription of units of participation or
shares in collective investment body, using any advertising medium
or communication;
d) "Control or domain", the relationship between any natural or collective person and a
society:
i) When, in respect of the natural or collective person, please check in some of the
following situations:
1º) Hold the majority of the voting rights corresponding to the social capital of the
society;
2º) Being a partner of society and having the right to designate or impeach more than
half of the members of the governing body or the organ of
surveillance;
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3º) Being able to exert dominant influence on society, by force of
contract or clause of the statutes of this;
4º) Be a partner of society and control on its own, by virtue of agreement
concluded with other associates 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) For the purposes of the application of the points 1 .), 2 .) and 4 .) of the previous subparagraph:
1º) It is considered that the rights to vote, designation or removal of the
participant has equated the rights of any other society of his
dependent or that with it will find itself in a group relationship, well
as those of any person who attests on their own behalf, but on account of the
participant or of any other of the said societies;
2º) The rights relating to shares held on account of person who are held
are not the participant or other of the said societies, or concerning the
shares held in warranty, provided that, in the latter case, such rights are
exercised in accordance with the instructions received, or the possession of the
actions is a current operation of the participant in respect of
loans and voting rights are exercised in the interest of the
provider of the warranty.
iii) For the purposes of the application of paragraphs 1) and 4) of the sub-paragraph i ), deduct to the
totality of voting rights corresponding to the social capital of society
participated in the voting rights relating to the participation held by this
society, by a its subsidiary or by a person who attests on behalf of its own
but on account of any of these societies;
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e) "Principal Realtor", a credit institution, an investment company or
any entity subject to prudential regulation and continuous supervision, which pay
services to qualified investors, notably by funding or executing
transactions of financial instruments on the quality of counterparty, and that also
may provide other services, such as clearing and settlement of business,
guard services of financial instruments, loan of securities, technology
personalized or operating support facilities;
f) "Constitutive documents":
i) Dealing with collective investment body of a contractual nature, the
document with fundamental information aimed at investors, the
prospeetus and the management regulation;
ii) Addressing body of collective investment of a society-like nature, the
document with fundamental information aimed at investors, the
prospeetus, the management regulation and the contract of society;
g) "Leverage effect" means any method by which the position is increased
risk of a collective investment body managed through the contraction of
cash loans or in securities, from recourse to positions on
derivatives or by any other means;
h) "Parent Company", the company that exercises control over another company;
i) "Managing entities of the European Union", the entities authorized in the terms
provided for in Directive No 2009 /65/CE, of the European Parliament and of the Council, of
July 13, 2009, or in Directive No 2011 /61/UE, of the European Parliament and of the
Council, of June 8, 2011, and which usually manage bodies of
collective investment, including the collective investment bodies in form
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self-managed society-based, with registered office in another Member State;
j) "Managing entities of third countries", the entities that habitually manage
alternative investment bodies, including investment bodies
self-managed alternative, with registered office in states not belonging to the Union
European;
k) "Entities responsible for the management", the managing entities provided for in Article 65.
and collective investment bodies in self-managed society-shaped form
established in Portugal, excluding credit institutions when it is on
cause the exercise of management activity or marketing in the European Union;
l) "State in which it is established or constituted":
i) In the case of an entity responsible for the management and a managing body of the
European Union, the State where the registered office is located;
ii) In the case of a collective investment body, the state in which it was
authorized or registered, or, if it is not authorized or registered, the
State where it is located at its registered office or central administration;
iii) In the case of depositary, the State where the registered office or branch office is located;
iv) In the case of legal representative who is a collective person, the State where if
meets the registered office or branch office;
v) In the case of legal representative who is a natural person, the State where if
finds domiciliated;
m) "Member State", the Member State of the European Union;
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n) "Member State of host of managing entities of the European Union",
any State-diverse Member State-Member of origin, in which a
managing entity of the European Union manages alternative investment bodies of the
European Union or markets units of participation of a body of
alternative investment from the European Union or an investment body
alternative country third;
o) "Member State of host of managing entities of third countries", the
Diverse Member State of the Member State of reference, in which an entity
third country manager manages alternative investment bodies of the Union
European or markets units of participation of a body of
alternative investment from the European Union or an investment body
alternative country third;
p) "State-hosting member of the collective investment body",
any Member State, divers from its Member State of origin, in whose
territory to be commercialized the units of participation of the body of
collective investment;
q) "State-Member State of origin of managing entity of the European Union", the State-
Member where you are located at your registered office;
r) "State-Member State of origin of the collective investment body":
i) The Member State in which the collective investment body was
authorized or registered under applicable national law or, in case
of authorisations or multiple registrations, the Member State in which the
collective investment body was authorised or registered by the first
time;
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ii) In case the collective investment body has not been authorized or
registered in a Member State, the Member State where the body of
collective investment has its registered office or its central administration;
s) "Member State of reference", the Member State determined in the terms of the
article 96 for the purpose of authorisation of a third country managing entity;
t) "Branch", the collective person relatively to whom another collective person, designated by
parent company, find themselves in a control relationship further considering that the
subsidiary of a subsidiary is also subsidiary of the parent company that they both depend on;
u) "investment fund", the autonomous patrimouses, without legal personality,
belonging to the participants in the general regime of communion regulated in the present
General Regime;
v) "own funds" means the own funds referred to in Part II of the Regulation (EU)
n 575/2013, of the European Parliament and of the Council of June 26, 2013, without
prejudice to the transitional provisions applicable under Part X of the same
Regulation;
w) "Merger", an operation upon which:
i) One or more collective investment bodies or compartments
autonomous patrimonial of these (collective investment bodies
incorporated) transfer, in the sequence and on the occasion of their dissolution without
settlement, the set of the asset and the liability that integrates its heritage
for another already existing collective investment body or for a
autonomous heritage compartment of this (investment body
embedding collective), upon attribution to the participating respects of
units of participation of the collective investment body
embedding and, if provided for in the merger project, of a cash amount
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not more than 10% of the net worth of these units of
participation;
ii) Two or more collective investment bodies or compartments
autonomous patrimonial of these (collective investment bodies
incorporated) transfer, in the sequence and on the occasion of their dissolution without
settlement, the set of the asset and the liability that integrates its heritage
for another collective investment body by them formed or for
an autonomous heritage compartment of this (organism of
embedding collective investment), upon allocation to the respects
participants of investment body participation units
embedding collective and, if provided for in the merger project, of an amount in
money not exceeding 10% of the net worth of these units
of participation; or
iii) One or more collective investment bodies in securities or
autonomous patrimonial compartments of these (organism of
collective investment in embedded securities), which continue
to exist until the settlement of the liability, transfer its net asset to
another autonomous heritage compartment of the same organism of
collective investment in securities, for a body of
collective investment that constitutes for the purpose of or for another
collective investment body in already existing securities or
autonomous heritage compartment of this (investment body
collective in embedding securities);
x) "National Merger", merger in the modalities provided for in subparagraphs i ) and ii ) of the paragraph
previous among collective investment bodies constituted in Portugal;
y) " Cross-border merger of collective investment bodies into values
securities ", merger in which:
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i) Two of them, at least, are authorised in Member States
different; or
ii) At least two collective investment bodies in values
authorised securities in the same Member State merge into a
collective investment body in new authorized securities
and constituted in another Member State;
z) "Qualified investor" means the entity as such qualified in the terms provided for in the
n Article 30 (1) of the Securities Code, approved by the Decree-Law
n. 486/99 of November 13;
aa) "Collective Investment Bodies", the institutions, gifted or not of
legal personality, which have as an end the collective investment of capital
obtained from investors, the operation of which is subject to a
principle of allocation of risks and the pursuit of the exclusive interest of the
participants, subdividing themselves into:
i) "Collective investment bodies in securities", which are
open bodies:
1º) Whose exclusive object is the collective capital investment of
investors not exclusively qualified in securities
or other net financial assets referred to in subsection I of the
section I of Chapter II of Title III and which comply with the limits
provided for in Subsection II of the same section; and
2º) Whose units of participation are, at the request of their holders,
reacquired or salvaged, directly or indirectly, in charge of these
organisms, equipping themselves with these reacquisitions or rescues the fact that
a collective investment body in securities act of
mode to which the value of its market share units
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regulated do not deviating significantly from its value
net worth; and
ii) "Alternative investment bodies", which are the rest,
specifically those provided for in ( a ) of paragraph 2 of the previous article and still:
1º) The open or closed bodies, the object of which is the investment
collective in securities or other financial assets,
designated " alternative investment bodies in values
securities ";
2º) The open or closed bodies, the object of which is the investment in
real estate assets, designated " investment bodies
real estate ";
3º) Other enclosed organisms whose object includes the investment in
non-financial assets that are durable goods and have value
determinable, assigned " investment bodies in assets no
financial ";
bb) "Collective Investment Bodies of the European Union",
i) Bodies authorised or registered in another Member State on the terms
of the applicable national law;
ii) Bodies not authorised or registered in another Member State but
with registered office or central administration in another Member State;
cc) "Alternative country alternative investment bodies", the bodies that do not
are collective investment bodies of the European Union;
dd) "Food-type collective investment bodies", the organisms that:
i) They invist at least 85% of their assets in units of participation of
another collective investment body (the investment body
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main type collective);
ii) They invist at least 85% of their assets in more than one body of
core-type collective investment, should these investment bodies
master type collective have identical investment strategies, or
iii) Have by any other form an exhibition of at least 85% of the
your assets to a core type collective investment body;
ee) "Principal-type collective investment bodies", the organisms in which
another collective investment body invests or in which it holds a
exhibition under the terms of the preceding paragraph;
ff) "Qualified participation" means the participation referred to in paragraph u ) from Article 2 of the
General Regime of Credit Institutions and Financial Societies, approved by the
Decree-Law No 298/92 of December 31;
gg) "Group Relation", the relationship between affiliated societies to each other on 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 the
foreign;
hh) "Close Relation" or "Relation of closeness", the relationship between two or more
people, singular or collective, who find themselves connected with each other through:
i) Of a share, direct or indirect, of percentage not
less than 20% in the social capital or voting rights of a
company; or
ii) From a control relationship; or
iii) From a connection of all in a lasting way to one even
third through a control relationship.
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ii) "legal representative" means a natural person with a domicile in the European Union or
a collective person with registered office in the European Union who, having been
expressly designated by a third country managing entity, acts on behalf of
and on account of this together from authorities, customers, bodies and counterparties of the
same in the European Union, in everything with regard to the obligations that
impend on the said managing entity;
jj) "Representatives of the workers", the structures of collective representation of the
workers;
kk) "uncowed society", a society with a registered office in the European Union and
whose shares are not admitted to trading on a regulated market;
ll) "Branch", the establishment of a company devoid of personality
legal and which are directly, in whole or in part, operations inherent in the
activity of the company that it is a part of;
mm) "durable support", any instrument that allows the investor to store
information that is addressed to you personally, in such a way that they may be
consulted afterwards for a period appropriate to the purposes to which
are intended, and to allow an exact reproduction of the stored information;
nn) " Global net value of the collective investment body or compartment
autonomous patrimonial of this ", the amount corresponding to the total value of the
active respects less the total value of their liabilities.
2-All establishments set up in Portugal by a managing entity of the Union
European are considered a single branch.
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Article 3.
Dissemination of information
1-Unless otherwise stipulated, the publication or dissemination of information imposed by the
present General Regime is effected through a means of communication of large
diffusion in Portugal.
2-Case the means of communication chosen for the disclosure referred to in the preceding paragraph
is not the Information Diffusion System of the CMVM, provided for in Article 367 of the
Code of Securities, approved by the Decree-Law No. 486/99, of 13 of
november, the entity responsible for the management sends the CMVM copy of the information
referred to in the preceding paragraph within three days after the respective publication or
disclosure, save for more demanding time fixed in specific provision.
Article 4.
Typicity
1-Only the collective investment bodies provided for in the
present General Regime or in special legislation.
2-Should collective investment bodies be provided for in regulation of the
CMVM, the appropriate conditions of transparency and of
information.
Article 5.
Form and structure
1-Collective investment bodies assume the contractual form of fund of
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investment or the society-like form.
2-Collective investment bodies in society-made form comprise the
investment companies furniture and real estate investment societies.
3-The companies referred to in the preceding paragraph are joint-stock companies of fixed capital or
variable.
Article 6.
Denomination
1-A denomination unambiguously identifies the species and the type of the organism of
collective investment, adept at the political respect of investment.
2-To the investment fund is reserved the expression "investment fund", increased
of the expression "real estate" in the case of real estate investment funds, which must
integrate their denomination.
3-Collective investment bodies in a society-shaped form is reserved to
designation "SICAF" or "SICAV" or, in the case of investment bodies
real estate, "SICAFI" or "SICAVI", depending on whether they constitute, respectively, with
fixed or variable capital, and the same shall integrate its denomination.
4-In alternative investment bodies in securities and assets not
financial the expressions referred to in paragraphs 2 and 3 include the "alternative" designation, in the
following terms: "alternative investment fund", " SICAF-investment
alternative "or" SICAV-alternative investment "," SICAFI-alternative investment "
or "SICAVI-alternative investment" depending on applicable.
Article 7.
Representative securities of heritage
1-The heritage of investment funds is represented by portions of content
identical that they assure their holders equal rights, without prejudice to the possibility of
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be created different categories, without nominal value, that are assigned units of
participation.
2-Without prejudice to the provisions of paragraph 4 of the following article, the social capital of the bodies of
collective investment in society-shaped form is divided into nominative actions of
identical content, with no nominal value.
3-References in the present General Regime to units of participation shall be
understood in order to cover shares of collective investment bodies under
society-shaped manner, as well as the references to participants should be understood from
mode to cover shareholders of the same organisms, unless otherwise the result of the
own provision.
Article 8.
Regime of the units of participation
1-The value of the units of participation determines by dividing the overall net value of the
collective investment body by the number of units of participation in
circulation.
2-Participate units can be represented by certificates of one or more
units of participation or adopt the scriptural form, being admitted to its
fractionation for underwriting and redemption effects or reimbursement.
3-Participity units may only be issued after the amount corresponding to the
subscription price being effectively integrated into the heritage of the body of
collective investment, except if it comes to the unfolding of units of participation
already existing or free distribution.
4-There can be issued different categories of units of participation in function of
rights or special characteristics relating to them, as long as provided for in the
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constitutive documents and ensured consistency with the risk profile and the policy
of investment of the collective investment body.
5-The participation units of each category have identical content and ensure to the
their holders equal rights.
6-The rules regarding the creation of categories of units of participation are developed
in regulation of the CMVM.
Article 9.
Participants
1-The holders of participation units designate themselves "participants".
2-A The quality of participant acquires at the time of subscribing to the units of
participation with the payment of the value respect, or of the respect of the acquisition in
market, and basket at the time of the extinction of the units of participation in the
rescue operation, refund, settlement or merger of the investment body
collective, or of the divestory in market.
3-Unless lawful provision to the contrary, only payment in kind in the
subscription, in the rescue and the refund of the units of participation or in the product of the
settlement:
a) With prior agreement of all participants and as long as provided for in the
constitutive documents in the case of the alternative investment bodies of
particular or exclusively subscribed to qualified investors;
b) Excecionally, and upon authorization of the CMVM, in the remaining cases.
4-A underwriting implies acceptance of the provisions of the constitutive documents of the
collective investment body and confers to the entity responsible for the management the
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powers necessary to carry out the acts pertaining to his administration.
5-Particies of closed collective investment bodies enjoy the right of
preference in subscribing to new units of participation, save forecast in
contrary in the constitutive documents.
Article 10.
Species and type
1-Collective investment bodies may be opened or closed, depending on the
units of participation are, respectively, in variable number or in number
fixed.
2-The participation units of open collective investment bodies are
issued and rescued at the request of the participants, in accordance with the stipulation in the
constitutive documents and in regulation of the CMVM.
3-The participation units of closed collective investment bodies do not
may be the object of rescue, save the provisions of Article 62 (2).
4-Unless otherwise stipulated, collective investment bodies in form
fixed capital society-level observes the regime of closed investment funds and the
collective investment bodies in the society-shaped form of variable capital o dos
open investment funds.
5-A typology of collective investment bodies in securities and of
alternative investment bodies in securities is established in
CMVM regulation considering, in particular, the assets and rules of
composition of the portfolios.
Article 11.
Collective investment bodies in a society-shaped way
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1-Collective investment bodies in a society-based form are governed by the present
General Regime and still by the provisions of the Code of Commercial Societies, save
when the norms of this show are incompatible with specific nature and object
of these bodies or with the provisions of this General Regime.
2-For the purposes of the provisions of the preceding paragraph, they are incompatible with the Code of
Commercial Societies, among others, the standards relating to the following aspements:
a) Composition, increase, reduction and intangibility of social capital and amortization
of shares;
b) Constitution of reserves;
c) Limitation of distribution of goods to shareholders;
d) Rules relating to the drafting and provision of accounts;
e) Regime of merger, spinoff and transformation of societies; and
f) Acquisition scheme tendant to the total field.
3-Collective investment bodies in society-shaped form can be heterogerated
or self-managed depending uneven or not a third entity for the exercise of the
respects management.
4-Constitutive documents may provide for the change to the type of management, provided that
authorized by the CMVM, after an assent of the depositary.
5-Collective investment bodies in self-managed society-shaped form are
financial intermediaries in the acetation of the Securities Code, approved by the
Decree-Law No. 486/99 of November 13.
6-Collective investment bodies in society-made form authorized by the CMVM
must have head office and central administration in Portugal.
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7-It is not applicable to collective investment bodies in society-made form the scheme
of the open societies enshrined in the Securities Code, approved by the
Decree-Law No. 486/99 of November 13.
Article 12.
Autonomic heritage compartments
1-Constitutive documents may provide for the division of the investment body
collective in autonomous heritage compartments, in the terms provided for in the present
General Regime and in regulation of the CMVM.
2-In the case of investment funds, autonomous heritage compartments
they designate themselves "subfunds".
3-Each autonomous heritage compartment is represented by one or more categories
of units of participation and is subject to the rules of equity autonomy.
4-A part of the heritage of the collective investment body under society-shaped
consisting of the goods necessary for the exercise of the activity is, pursuant to the
constitutive documents, prorated by all heritage compartments
autonomous or integrated in an autonomous heritage compartment of the remaining ones, whose
actions are not the object of ransom or refund.
5-The value of the units of participation of the autonomous heritage compartment
determines, at each time, by the division of the global net value of the compartment
autonomous patrimonial by the number of units of participation of that compartment
autonomous patrimonial in circulation.
6-The collective investment body with autonomous patrimonial compartments
has a single prospeit, yet the investment policies of these are
necessarily distinct from each other, which, in addition to other requirements laid down in the present
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Legal Regime, establishes a segregation of appropriate content that allows
establish the univocal correspondence between each autonomous heritage compartment
and the information that he respects, as well as the criteria for apportionment of
common responsibilities to more than a subfund.
7-A each autonomous heritage compartment shall apply for the established legal regime
for the respective collective investment body, including the scheme of the units
of participation and the requirements concerning the overall net value.
8-The constitutive documents of the collective investment body define the
conditions applicable to the transfer of units of share between compartments
autonomous patrimonial.
9-Are kept autonomous accounts for each of the heritage compartments
autonomous.
Article 13.
Heritage autonomy
1-Collective investment bodies do not respond, in any case, by the debts
of the participants, the entities that ensure the functions of management, deposit and
marketing, or other collective investment bodies.
2-Pelas debts relating to the collective investment body responds only the
heritage of the same.
Article 14.
Rights of customers and participants
1-Customers interested in underwriting units of participation are entitled to
is provided the document with fundamental information aimed at investors
for free.
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2-The participants are entitled, inter alia:
a) To receive the titled participation units or, adopting these the form
scriptural, to the inscription of the same on individualized registration account, after
have paid in full the subscription value, within the time specified in the documents
constitutive of the collective investment body;
b) To the information, pursuant to this General Regime;
c) To receive the amount, or asset, in cases where payment is admissible
in kind, corresponding to the value of the rescue, the refund or the product of the
settlement of the units of participation.
Article 15.
Independence and exclusive interest of the participants
The entity responsible for the management, the depositary and the marketer entities of a
collective investment body act independently and in the exclusive interest
of the participants.
Article 16.
Requirements for global net value
1-The overall net value of collective investment bodies should be from at least:
a) € 5000000, in the case of real estate investment bodies, from the
first 12 months of activity;
b) € 1250000, in the case of collective investment bodies in values
securities, the alternative investment bodies in securities and
of the alternative investment bodies in non-financial assets, from the
first six months of activity.
2-If the overall net value of collective investment bodies presents value
lower than the one defined in the preceding paragraph, the entity responsible for the communal management of
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immediate this fact to the CMVM, and the latter should adopt the necessary measures to the
regularization of the situation, and may not extend it by a higher period
to six months, save if longer period is authorized by the CMVM.
3-If the period referred to in the preceding paragraph is elapsed, the entity responsible for the management
has not regularised the situation should promote the settlement of the body of
collective investment.
4-Do not apply the provisions of paragraph 1 to the alternative investment bodies of
particular subscription or directed exclusively to qualified investors.
Article 17.
Dispersion requirements
1-A from the first six months of activity of the collective investment body:
a) Units of participation must be dispersed by a minimum number of 30
participants;
b) A single participant shall not hold more than 75% of the units of participation,
considering whether held by one participant the holdings of the entities
provided for in points a ) a h ) of Article 147 (1).
2-A CMVM may authorise that the provisions of paragraph 1 not be observed where the
structure of participants of an organism to be composed, in whole or in part, by
qualified investors, specifically pension funds or other bodies of
collective investment, which ensure indirect fulfillment of the minimum number there
mentioned.
3-The requirements set out in paragraph 1 may not be defaults for a period of more than
six months.
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4-The provisions of paragraph 1 shall not apply to the alternative investment bodies of
particular subscription or directed exclusively to qualified investors.
Article 18.
Underwriting and rescue
1-Constitutive documents set out the terms and conditions in which the units of
participation are subscribed and in which payment in case of ransom or refund is
effected, as well as the conditions under which underwriting and rescue operations can
be suspended.
2-With respect to open real estate investment bodies, the terms to be fixed in
constitutive documents respect the following rules:
a) The subscriptions of the participation units occur with a minimum range
daily and maximum corresponding to the dates foreseen for the rescues, ahead
designated by period of subscription, without prejudice to be received
subscribing requests at all time;
b) The rescues of the participation units occur with a minimum interval of
six months and maximum of 12 months between you, hereinafter referred to by period of
rescue, without prejudice to being able to be received requests for rescue to the whole
time;
c) The ransom requests are made to a minimum with six months and at most with 12
months in advance in the face of the date of the rescue;
d) The investor may cancel the ransom request in the 30 days following the request,
as long as the cancellation occurs on date that precedes the rescue by the period
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provided for in the terms of the preceding paragraph;
e) The maximum payment term of the ransom applications is three months.
3-In excecional cases, duly substantiated by the entity responsible for the
management, may the CMVM allow the extension of the period referred to in para. and ) of the number
previous.
4-Particiers can only ask for the rescue of the units of participation of a
open real estate investment body decorated 12 months from the respect
subscription.
5-In the open collective investment bodies, the subscriptions and rescues are
Performed with the periodicity corresponding to the disclosure of the value of the units of the
participation, regardless of the date of the respective application, save the envisaged scheme
in paragraph 2.
6-The value of the participation unit for subscription and rescue or redemption effects
is, in accordance with the constitutive documents, the disclosed in the terms of paragraph 3 of the
article 143 at a later time on request.
7-In excecional circumstances, including situations of aggravated lack of liquidity, and if the
interest of the participants to justify, the underwriting or rescue operations of
units of participation may be suspended by decision of the entity responsible for the
management in accordance with the provisions of CMVM regulation and the documents
constitutive.
8-A The entity responsible for the management immediately communicates to the CMVM the decision to
suspension.
9-The underwriting or rescue operations of the units of participation of bodies of
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collective investment established in Portugal may also be suspended by
decision of the CMVM, in the interest of the participants or in the public interest, in
compliance with the provisions of regulation of the CMVM.
CHAPTER II
Conditions of access and exercise of activity
Article 19.
Authorization and constitution
1-A constitution of collective investment body in Portugal, as well as of the
respects autonomous heritage compartments, depends on prior authorization from the
CMVM.
2-A The authorization of collective investment body covers the authorization of
marketing and the approval by the CMVM of the constitutive documents, of the choice
of the depositary and still:
a) Dealing with an investment fund, from the request of the managing body to manage the
investment fund;
b) Addressing collective investment body in society-shaped form, da
designated managing body for the respect of management, applicable case.
3-A The approval of the constitutive documents shall be governed by the provisions of the provisions of paragraphs 5 and 7 of the
article 118 of the Securities Code, approved by the Decree-Law No. 486/99,
of November 13.
4-The collective investment body considers itself constituted on the date:
a) From the commercial register of the respected contract of society, dealing with
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collective investment body in a society-shaped form; or
b) From the integration in your portfolio of the amount corresponding to the financial settlement:
i) Of the first subscription, dealing with open investment fund; or
ii) From the set of subscriptions effected in the initial period of subscription,
treating themselves to a closed investment fund.
5-A The financial settlement of the subscriptions for the closed investment fund takes place
up to the working day following the end of the subscription period.
6-A date referred to in paragraph 4 shall be communicated immediately to the CMVM.
Article 20.
Statement of the order
1-The application for permission of the collective investment body, subscribed by the
promoters of the collective investment body in a society-shaped form or by the
gestures entity, is instructed with the following documents:
a) Projects of constitutive documents;
b) Projects of the contracts to be concluded with the depositary, with the entities
marketers, with subcontractor entities and with the managing company in the
case of collective investment body in a heterogerous society-shaped society-shaped form;
c) Projects of the contracts to be concluded with other servicing entities;
d) Supporting documents of acceptance of functions of all entities
involved in the activity of the collective investment body in the terms of the
contract projects;
e) Information about the place where the collective investment body of type
main is established, should the collective investment body be of the type
food.
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f) Document, provided for in Article 221, containing the pre-contractual information to
make available to investors should they target commercialization only along with
qualified investors.
2-In addition to the documents referred to in the preceding paragraph, the authorisation of a body of
collective investment in society-made form depends still on the sending of the program of
activities, including organizational structure and human means, technicians and materials, and
information on how it intends to comply with its obligations and, dealing with
collective investment body in a self-managed society-shaped form, of the following
additional elements:
a) Indication of the existing close relations between the investment body
collective in society-form and other natural or collective persons;
b) Reasoned statement of the applicants attesting that the members of the organ
of administration and surveillance comply with the requirements for independence
applicable;
c) The communication made in accordance with Article 54 (2);
d) Information on the suitability and experience of the members of the organ of
administration of the collective investment body in a society-shaped way;
e) Information on the identity and suitability of holders of shareholdings
qualified in the collective investment body, as well as on the value
of these holdings;
f) Information on the policies and practices of remuneration provided for in Article 78.
3-In addition to the documents referred to in paragraph 1, the application for a constitution permit of
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alternative investment body is further instructed with:
a) The supporting elements of the fitness of the entity responsible for the management, having
in particular attention the investment policy of the investment body
alternative, its objectives, the management techniques used and the type of assets and
markets where it invests and, if it is the case, of the entities providing advice;
b) The statement of reasons for the minimum amount of subscription, particularly in function
of the respect complexity, risk and specific segments of investors to which if
is intended for the alternative investment body, save by treating organisms
of alternative investment of private subscription or exclusively directed to
qualified investors.
4-A CMVM may ask the applicants for clarifications, supplementary information or
suggest changes to the documents referred to in the previous figures that you consider
necessary.
5-Should the documents already build process in the CMVM and find themselves updated, it is
sufficient the reference to the documentation submitted previously.
6-A The authorization of alternative investment body under society-shaped depends
of prior consultation with the competent authority of the relevant Member State when the
alternative investment body is:
a) A subsidiary of another managing entity of the European Union, of the company of
investment, credit institution or insurance company or reinsurance
authorized in that Member State;
b) A subsidiary of the parent company of an entity referred to in the preceding paragraph;
c) A society under the control of the same natural or collective persons who
control an entity referred to in the ( a ).
Article 21.
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Decision
1-A The CMVM's decision is notified to the applicants within 20 days, or 30 days, in the
case of the collective investment bodies in self-managed society-shaped form, to be counted
of the request date of the request completely instructed.
2-The period referred to in the preceding paragraph shall be suspended by the effect of the notification referred to in the
n. 6 of the following article and by the period provided for therein.
3-In the absence of a decision of the CMVM within the time limit set out in paragraph 1:
a) The authorisation is deemed to be granted in respect of the bodies of
collective investment in securities;
b) The authorisation is deemed to be undue with respect to the bodies of
alternative investment.
5-A CMVM may limit the scope of the authorisation of investment bodies
alternative in society-shaped form, notably as to investment strategies.
Article 22.
Refusal of authorization
1-A CMVM refuses authorization when:
a) The content of the elements instrucing the application is insufficient;
b) The collective investment body in a society-shaped form does not demonstrate to
ability to fulfill the duties set out in this General Regime;
c) The managing entity of the European Union is not authorised to manage bodies of
collective investment in securities in the Member State where it has its
statutory seat;
d) Be prevented the marketing of the units of participation of the body of
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collective investment in cause in Portugal, notably by virtue of a
provision of the respective constitutive documents.
2-A CMVM also refuses the application for an investment body permit
collective in societtal form should the effective exercise of the supervisory functions be
post concerned by:
a) Existing close relations between the same and other natural or collective persons;
b) Legal, regulatory or administrative provisions of third countries that govern
natural or collective persons with whom to maintain such relations; or
c) Difficulties related to the implementation of the said legal provisions,
regulatory or administrative.
3-A CMVM may refuse the authorisation for the marketing of body of
alternative investment together with certain specific segments of investors,
case not the sufficient conditions are met for their proper protection,
particularly in terms of complexity, liquidity of the assets and risk of the organism of
alternative investment.
4-When the interest of the participants justifies it and by treating themselves from organisms of
closed collective investment of public underwriting, CMVM may still refuse to
authorization for their constitution while they are not fully subscribed to them
units of participation of another collective investment body managed by the
same gestures entity.
5-A CMVM may refuse the acquisition of certain types of assets for heritage
of an alternative investment body, whenever the protection of investors and
of the regular operation of the market impose it.
6-Havening grounds for refusal in the terms provided for in the preceding paragraphs, the
CMVM, before turning down the application, notifies the applicants, giving them the maximum deadline
of 10 days to suppress the insufficiency, when appropriate, and to address
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as to the appreciation of the CMVM.
Article 23.
Expiry and waiver of authorisation
1-A The authorization of the collective investment body lapses:
a) If, from the notification of the decision of authorisation to the applicants, it is not
initiated the underwriting within 12 months, concerning bodies of
open collective investment, and within six months, in the case of bodies of
closed collective investment;
b) If the collective investment body in a societtal form has ceased there, by the
minus six months, your activity.
2-A the managing body responsible for the management may expressly waive the authorization of the
collective investment body.
Article 24.
Revocation of authorization
1-A CMVM may revoke the authorization of the collective investment body if:
a) In the event of a serious or systematic violation of legal, regulatory or legal standards
constants of the constitutive documents, the interest of the participants or the defence
of the market justifying it;
b) The requirements set out in Articles 16 and 17 are not met;
c) Authorisation has been obtained with recourse to false statements or any
another irregular medium;
d) The collective investment body cees to bring together the conditions of concession
of the authorization.
2-Constitui still ground of revocation of authorization of investment body
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closed collective of undetermined duration, the non-submission of the application for admission
to trading on regulated market or in multilateral trading system in the
deadline referred to in Article 62 (8), the rejection of the same or the absence of
admission or selection within 12 months.
Article 25.
Subsequent changes
1-Consideration of relevant amendments to the constitutive documents to which they arise from:
a) Significant modification of the investment policy, of the distribution policy of
income or the term of calculation or disclosure of the value of the units of
participation, in the terms defined in regulation of the CMVM;
b) Global increase in the management and deposit commissions supported by the body
of collective investment.
2-The changes referred to in the preceding paragraph are communicated in advance to the CMVM,
may this deduct opposition within 15 days of the receiving of the communication
and become effective 40 days after the course of that period or after the date of notification
of the express decision of non-opposition.
3-Stay subject to mere communication to the CMVM, becoming effective on the date of fearsome
of the same, the following amendments to the constitutive documents:
a) Denomination, headquarters, contacts and addresses of the entity responsible for the management,
of the depositary, the marketizing entities, the auditor or the entities
subcontractors;
b) Identification of the members of the social bodies of the entity responsible for the
management;
c) Change of the holders of the majority of the social capital of the entity responsible for the
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management;
d) Domain or group relations referring to the entity responsible for the management;
e) Inclusion of new marketer entities;
f) Reduction of the overall amounts collected for the title of management commissions, deposit,
subscribing, rescue and transfer or fixation of other more favourable conditions;
g) Updating of quantitative data;
h) Adaptations to legislative or regulatory changes;
i) Mere formal corrections that do not take place in specific legal provision.
4-Are communicated in advance to the CMVM, and may this deduct opposition within 15
days to be counted from this communication, and become effective after the course of this period or
after the date of notification of the express decision not to oppose the amendments:
a) To the constitutive documents not covered by the preceding paragraphs or by the
n. paragraphs 5 and 6 of Article 51 and Articles 77 and 125;
b) To the contracts referred to in paragraph b ) of Article 20 (1), as well as the projects
of contracts with new entities and the changes to these;
c) The elements referred to in the f ) of paragraph 1 and proadmium and point g ) of paragraph 2 of the
article 20.
5-A the managing body responsible for the management further informs the CMVM of any change in the
elements and information presented for the purposes of instruction of the request for
authorization.
6-Saved by treating collective investment bodies in society-form
self-managed, the changes to the elements and information presented with the request for
authorization of:
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a) Alternative investment bodies directed exclusively to investors
qualified are only subject to subsequent communication to the CMVM;
b) Alternative private underwriting investment bodies, are communicated
to CMVM becoming effective on the date of receiving communication.
7-A communication of any change must be instructed with all documentation to it
concerning.
Article 26.
Information and law of participants
1-Collective investment body participants are individually informed
by the entities responsible for the management, pursuant to the provisions of the n. 3 a to 6 of the
article 37, up to 10 working days after:
a) The term of the deadline for the CMVM to deduct opposition or after the notification of the
express decision of non-opposition, of the amendments referred to in points a ) and b ) from the
n. 1 of the previous article;
b) The date of the communication, of the amendment referred to in para. c ) of the Article 3 (3)
previous;
c) The term of the deadline for the CMVM to grant authorization or after the date of
notification of the decision to deinjury, the changes referred to in Articles 77 and
125.
2-In cases where a global increase in management and management commissions occurs.
deposit to be borne by the collective investment bodies or a modification
significant of the investment policy and the income distribution policy, the
open collective investment body participants can, as of the date of the
communication of the changes and even the same if they become effective, proceed to the rescue
of the units of participation without paying the commission's respects.
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3-The changes to the management regulation of which result in an increase in the commission of
rescue or an aggravation of the conditions of calculation of the same can only be applied
relatively to underwriting units subscribed after the date of entry into force
of these changes.
4-The provisions of paragraphs 1 and 2 shall not apply to participants of bodies of
alternative investment of private subscription or of organisms exclusively
directed to qualified investors.
CHAPTER III
Vicissitudes of the collective investment bodies
SECTION I
Merger, spinoff and processing
SUBSECTION I
General rules
Article 27.
Admissibility and competent authority
1-Collective investment bodies, regardless of the form they assume,
may, upon prior authorization, be the object of merger, spin-off and processing.
2-A CMVM is the competent authority for the authorization of national mergers and mergers
cross-border in which one of the collective investment bodies in values
incorporated securities has been authorized in Portugal.
3-The merger of authorised alternative investment bodies is not permitted in
Portugal with unauthorised collective investment bodies in Portugal.
4-Collective investment bodies in securities cannot be object
of merger or spin-off with alternative or processing investment bodies
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in these.
5-The collective investment bodies object of merger, spin-off and transformation can
be managed by the same entity or by separate entities.
6-A merger, spinning or processing:
a) From alternative private underwriting investment bodies depends only
of prior communication to the CMVM with a 30-day advance in the face of production
of its effects.
b) From alternative investment bodies exclusively directed to investors
qualified is only subsequently communicated to the CMVM, within 15
days.
Article 28.
Applicable regime
1-The merger of alternative investment bodies apply the rules on merger
of collective investment body in securities provided for in Subsection
following, with the necessary adaptations, particularly those imposed by the species of the
alternative investment body, and with exclusion from the rules on mergers
cross-border.
2-Real estate of the alternative investment bodies object of merger are assessed
previously to the merger transaction, should the date of the last assessment dismiss more than six
months regarding the date of production of effects of the merger.
3-A The transformation and fission of collective investment body governed by the rules
defined in CMVM regulation.
SUBSECTION II
Merger of collective investment bodies in securities
Article 29.
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Instruction and procedure of the merger
1-The application for authorisation, submitted by the collective investment bodies in
securities involved or, in the case of cross-border mergers, only by the
collective investment bodies in authorized embedded securities
in Portugal, is instructed with the following elements:
a) The project of the merger, duly approved by the bodies involved;
b) The updated version of the prospeto and the document with fundamental information
intended for the investors of the collective investment body in values
embedding securities;
c) Statement from each of the depositaries involved, which attests to the compliance of the
elements referred to in points a) , f) and g) of Article 32 (1) with the requirements
applicable and with the constitutive documents of the investment bodies
collective in respect of securities;
d) The information regarding the merger to be communicated to the participants of the bodies of
collective investment in securities involved;
e) Elements necessary to the constitution of the collective investment body in
securities, in the case of merger by constitution of a new body of
collective investment in securities in Portugal, namely the
constitutive documents.
2-Should the case consider that the application has not been properly instructed, the CMVM, asks, on the deadline
of 10 days from the receiving of the application, the missing elements or the clarifications
additional necessary.
3-A CMVM analyzes the possible impact of the merger for the participants of the organisms
involved, in order to assess whether sufficient information is being provided to the participants.
4-In the case of cross-border mergers:
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a) Without prejudice to the provisions of Article 35, the information referred to in paragraph 1 shall be
drawn up in Portuguese or, in case the competent authority of another Member State
involved not to approve that language, in English or in another language accepted by the CMVM;
b) As soon as the process is complete, CMVM sends copies of the information
referred to in paragraph 1 to the competent authorities of the State Member State of the
embedding organism.
Article 30.
Decision and notification
1-A CMVM authorizes national merger, verified compliance with all requirements
of Articles 29 to 33.
2-In the case of cross-border mergers, the authorization of the CMVM depends on:
a) The collective investment body in embedded securities has been
object of notification of marketing of its units of participation in
all Member States in which the incorporated body is authorised or
has been the object of notification of commercialization of the respective units of
participation;
b) Information intended for participants has been considered sufficient
by the CMVM, having this received identical assessment from the competent authorities
of the State-Member State of the collective investment body in values
embedding securities or not having these carried out any communication in
contrary.
3-Within 20 days of the submission of the entirety of the elements referred to in the
previous article, CMVM notifies the decision of authorisation or dismisstion of the
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merger operation:
a) The collective investment bodies in the applicant securities;
b) In the case of cross-border mergers, the competent authorities of the State-
Member of origin of the collective investment body in securities
embedding.
4-If the content of the elements instrucing the request is insufficient, the CMVM, before
refuse the merger, notifies the applicants, giving them the maximum period of 10 days, to
to supply the insufficiency and to address the assessment of the CMVM.
5-The time limit referred to in paragraph 3 shall be suspended by the effect of the notification referred to in the number
previous.
6-In the absence of a decision of the CMVM within the period provided for in paragraph 3, the merger transaction
considers itself to be dewound.
7-In the wake of a merger by constitution of a new investment body
collective in securities, the incorporated incorporated body in Portugal
is found to be exempted from compliance with the provisions of Articles 176 to 178, during
a period of six months from the date of authorization of the merger.
8-A The authorization of the merger also covers the authorisation for the constitution of the new
collective investment body in securities or the approval of the
changes in the constitutive documents of the incorporated body, depending on the
cases, if this is constituted in Portugal, and takes into account the organs of administration and
the managing entities involved, the suitability of technical, material and human means
of the entity responsible for the management of the collective investment body in values
securities that result from the merger.
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9-In case they are also competent for the authorization of the merger authorities of others
Member States, shall the CMVM make its decision in close collaboration with the
Same.
Article 31.
Collaboration with the competent authorities for the authorisation
In cross-border mergers in which the body of collective investment in values
embedding securities is or is constituted in Portugal and CMVM is not
competent authority to authorize the merger, the CMVM:
a) Assesses the possible impact of the merger, in order to assess whether it is being provided
sufficient information to the participants of the collective investment body in
embedding securities;
b) You may request, in writing, within 15 days of the receiving of the copies of the
complete information regarding the merger, which the collective investment body
in embedding securities change the information to be paid to the respects
participants, informing the competent authorities of Member States of
origin of the bodies incorporated from that fact;
c) Informs the competent authorities of the Member States of origin of the
collective investment bodies in embedded securities, in the
period of 20 days from the receiving of the copies of the modified information in the
sequence of the application referred to in the preceding paragraph, on whether to consider sufficient
modified version of the information to be provided to the participants.
Article 32.
Fusion project
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1-Collective investment bodies in securities involved elaboration,
together, a fusion project that contains, among others, the following elements:
a) Identification of the type of merger and the collective investment bodies in
securities involved;
b) Context and rationale of the merger;
c) Foreseen repercussions of the merger for the participants of the bodies of
collective investment in securities involved;
d) Criteria adopted for the evaluation of the asset and, where appropriate, of the liability, in the
date of calculation of the terms of exchange;
e) Method of calculating the terms of exchange;
f) Target date for the production of effects of the merger;
g) Standards applicable, respectively, to the transfer of the assets and liabilities, when
occur, and to the exchange of the units of participation.
2-For the purpose of the realization of the merger operation, evaluation criteria are adopted
identical for the same type of assets and liabilities that integrate the heritage of the
collective investment bodies in securities involved, being
adopted, to that end, the evaluation criteria set out in the documents
constitutive of the collective investment body in securities that result
of the merger.
Article 33.
Control by auditor
1-It is subject to validation by independent auditor's report the following:
a) The criteria adopted for the evaluation of the asset and, where appropriate, of the liability, in the
date of calculation of the terms of exchange;
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b) If applicable, the payment in cash per unit of participation;
c) The method of calculating the exchange ratio, as well as the effective exchange ratio
determined on the date of calculation of the terms of exchange.
2-The report of the auditor referred to in the preceding paragraph is made available:
a) To the participants of the collective investment bodies in securities
involved, free of charge and at your request; and
b) To CMVM no later than 5 days after the date of production of effects of the merger
and, in the case of cross-border mergers, to the remaining competent authorities
involved, at your request.
3-Independent is any of the auditors of the investment bodies
collective in securities involved in the merger.
Article 34.
Provision of information to participants
1-Collective investment bodies in securities involved in the merger
provide the participating respects with sufficient and accurate information about the merger, of
way to enable them to make an informed judgement about the repercussions of it on their
investments.
2-A information to be provided to the participants of the collective investment body in
embedded securities must meet the needs of those who do not have
prior knowledge of the characteristics of the collective investment body in
embedding securities or the way this works, as well as to warn
for the document with fundamental information aimed at its investors and
for the advantages of your understanding.
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3-A information to be provided to the participants of the collective investment body in
embedding securities focuses on the merger operation and on the possible
impact of this on the collective investment body in securities
embedding.
4-The information referred to in paragraph 1 is only provided to the participants of the bodies of
collective investment in securities involved after the authorization of the merger.
5-The information referred to in paragraph 1 shall be made available at least 30 days before
of the closing date to apply for the rescue or, if applicable, the exchange of its units of
participation with no extra charge.
6-Whether the collective investment body in embedded securities or the
collective investment body in embedded securities are object
of cross-border marketing, the information referred to in paragraph 1 shall also
be drawn up in the official language of the host Member States of the bodies of
collective investment in securities in cause or in the other language authorized by the
respects competent authorities.
7-A The translation of the information, to which it should faithfully reflect the content of these, is effected under the
liability of the collective investment body in securities to which
is to provide the information.
8-The collective investment body in embedding securities makes available
to the participants of the collective investment body in securities
incorporated an updated version of the respected document with information
fundamental intended for the participants, which, if it was changed for purposes
of the merger, is also provided to the investors of the collective investment body
in embedding securities.
9-Between the date on which the information document provided for in paragraph 1 is provided to the
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participants and the date on which the merger produces effects, the information document and the
document with fundamental information aimed at the updated investors
concerning the collective investment body in embedded securities
are made available to each new participant who purchases or subscribed to units of
participation of collective investment bodies in securities
involved, as well as any investor who solicits them.
Article 35.
Language
When cross-border merger involves collective investment body in values
securities whose units of participation are marketed in Portugal, the version
updated from the document with fundamental information aimed at investors of the
collective investment body in embedding securities and information
on the merger to be disseminated to the participants in Portugal is written in Portuguese.
Article 36.
Content of the information to be made available
1-The information on the merger to be made available to the participants referred to in paragraph 1 of the
article 34 shall contain the following elements:
a) Context and rationale for the merger;
b) Possible repercussions of the merger for the participants, including eventual
significant differences with regard to investment policy and strategy,
costs, forecasted results, periodic information, possible dilution of the
performance and, if applicable, a clear warning to participants that their regime
tax may undergo changes in the wake of the merger, and shall for the purpose include:
i) Description of differences regarding the rights of participants of the
collective investment body in embedded securities
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before and after the proposed merger produced effects;
ii) Comparison of the differences verified in the case in which the documents with
key information aimed at investors of the bodies of
collective investment in securities involved include
synthetic indicators of risk and remuneration in different categories or
identify different significant risks;
iii) Comparison of all charges from collective investment bodies
in securities involved, on the basis of the amounts disclosed in the
respects documents with fundamental information aimed at the
investors;
iv) If the collective investment body in securities
incorporated charge a commission on the basis of performance, a
explanation of the mode of application up to the time of production of
effects of the merger;
v) If the collective investment body in securities
embedding charge a commission based on performance, a
explanation as to how the same is applied subsequently from
mode to ensure an equitable treatment of the participants who already possessed
units of participation in the collective investment body in values
embedded securities;
vi) Information on the form of affectation of the costs referred to in the sub-paragraph
previous with respect to the situations provided for in Article 39;
vii) Clarifications on whether the collective investment body in values
incorporated securities intends to undertake a reallocation of the portfolio
before the merger produces effects;
viii) Clarifications on whether the collective investment body in values
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incorporative securities intends the merger to have repercussions
significant in its portfolio and whether it intends to undertake a reallocation of the
portfolio before or after the merger produces effects;
c) Possible special rights of the participants with respect to the merger, among which the
of receiving additional information and, upon request, an exemplar of the report
of the auditor, the one to request, without additional charge, the rescue, or, if it is the case, to
exchange of your units of participation, and the closing date for the exercise of that
right, and shall for the purpose include:
i) Details on the treatment of any regularization accounts in the
respect for collective investment body in securities;
ii) Indication of the way to obtain an exemplar of the auditor's report.
d) Relevant procedural aspements and target date for the production of effects of the merger,
owing to the effect to include:
i) Indication of the intention to suspend the trading of the units of
participation to allow the merger to proceed in an effective manner;
ii) In the case of merger involving collective investment body in
unauthorized securities in Portugal, if it is relevant in the
terms of respect national legislation, indication of the procedure
through which the participants must approve the merger and the measures
predicted to inform them of the result.
2-If the terms of the merger include provisions that provide for a cash payment,
the information to be provided to the participants of the collective investment body in
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embedded securities must contain indications of the proposed payment,
including the date and the way in which the payment is effected.
3-When, in the case of cross-border mergers, the approval of the merger depends on the
deliberation of the participants in the terms of the law applicable to the investment body
collective in securities that are not authorized in Portugal, the information
providing about the merger may still contain a recommendation issued by the body
of collective investment in securities as to the following strategy.
4-The information to be provided to the participants of the collective investment bodies in
built-in securities include still:
a) The period during which these can continue to subscribe and request the
rescue of the units of participation of the collective investment bodies
in embedded securities;
b) The moment from which, having not made use of your rights while
participants from the collective investment bodies in securities to
incorporate within the period stipulated for the purpose, they pass on the rights
as participants of the collective investment body in values
embedding securities;
c) The information that, if they vote against the proposed merger or to abstain from
and do not exercise the rights conferred upon them, within the time limit stipulated for the
effect, become participants of the collective investment body in
embedding securities, provided that the proposal is approved by
majority.
5-If the main elements of the merger are summarized at the beginning of the paper that
inform the participants of the melting project should be made references to the parts of the
document where the developed information is found.
6-In the case of cross-border mergers, the collective investment bodies in values
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incorporated securities and the body of collective investment in securities
embedding explain in non-technical language the terms and procedures that
characterize the other collective investment body in securities that
differ from the terms and procedures used in Portugal.
Article 37.
Mode and means of providing information to participants
1-The information to be provided to the participants shall be drawn up in a succinct manner and in
non-technical language, so as to allow participants to form a judgement
informed about the impact of the merger on their investments.
2-The information referred to in the preceding paragraph shall be published by one of the means
provided for in Article 163 (1), and communicated, free of charge and individually, to the
participants from the collective investment bodies in securities.
3-A information due to participants is provided on paper or other support
lasting.
4-Whenever information is provided to all or some of the participants through
a lasting support other than on paper, the following conditions must be fulfilled:
a) The adopted method shall comply with the forms of communication agreed between the
participant and the collective investment body in securities in the
context of the relationship between them established;
b) The participant has specifically opted for lasting support other than the
on paper, when you have been given the possibility to choose between getting
of information on paper or in another lasting support.
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5-For the purposes of paragraphs 3 and 4, the provision of the information by electrolytic means is accepted if the
participant has demonstrably regular access to the Internet.
6-A available, by the participant, of an electrochemical address for the purposes of
communication with the collective investment body in securities, is
considered a proof of regular access to the Internet.
Article 38.
Right to the rescue
1-The participants of the collective investment bodies in securities
involved in the merger have the right to ask, without other charges beyond those retained by the
collective investment body in securities to cover the costs of
disinvestment, the rescue of the respective units of participation or, in case it is possible,
your exchange in units of participation of another collective investment body
in securities with a similar investment policy and managed by the
same entity gestures, or by any other entity with which the entity gestures
leave the same administration body or be connected by a domain relationship or
by a qualified, direct or indirect participation.
2-The right referred to in the preceding paragraph may be exercised from the moment in which
the participants of the collective investment bodies in securities
involved have been informed of the merger and become extinct 5 working days before the date
fixed for the calculation of the terms of exchange.
3-Without prejudice to the provisions of the preceding paragraph, the underwriting and rescue operations of the
units of participation of collective investment bodies in values
securities involved in the merger may be suspended for a period of time no
higher than the largest of the maximum time limits for the purpose of payment of the ransom requests
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anticipated for these collective investment bodies in securities,
immediately prior to the date of the merger.
4-For the purposes of the rescue conditions applicable to the participants, the date of subscription
of the units of participation to be considered is the date on which the units were subscribed
of participation of collective investment bodies in securities
incorporated.
Article 39.
Costs
1-Except in the case of collective investment bodies under society-shaped
self-managed, the legal, advisory or administrative costs linked to the preparation and
termination of the merger is not imputed to the collective investment bodies in
securities involved nor to the participants of any of them.
2-Collective investment bodies in self-managed society-shaped form that have
an autonomous patrimonial compartment affection to the exercise of its activity, the costs
referred to in the preceding paragraph will be affecting you.
Article 40.
Date of production of effects and nullity of the merger
1-A The merger shall produce effects within the maximum period of 90 days after the notification of
authorization by the CMVM, under penalty of expiry of this.
2-A The merger produces effects on the date of the underwriting of the body's share units
of collective investment in embedded securities, being equally as the
relevant date for the calculation of the terms of exchange of the units of participation of the
collective investment body in securities emboded by units
of participation of the collective investment body in securities
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embedding and, if applicable, for the determination of net worth to the
payments in cash.
3-A The entry into force of the merger shall be immediately made public by the means
provided for in Article 163 (1) and notified to the CMVM, as well as to the authority
competent from the State-Member State of origin of the remaining investment bodies
collective in securities participating in the merger, applicable case.
4-Merged mergers that have produced effects pursuant to paragraph 2 cannot be declared
nulas.
5-In the case of cross-border mergers in which the body of collective investment in
embedding securities is not established in Portugal, the dates referred to
in paragraph 2 shall be fixed by the law of the Member State of this.
Article 41.
Effects of the merger
1-Merges have the following effects:
a) All assets of the collective investment body in securities
incorporated are transferred to the collective investment body in values
embedding securities;
b) The participants of the collective investment body in securities
incorporated become participants of the collective investment body in
embedding securities, going on to hold a number of units of
participation proportional to the value, at the date of the merger, of the units of participation
who held in the collective investment bodies in securities
incorporated;
c) If provided for in the merger project, participants are entitled to a payment in
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money not exceeding 10% of the net worth of its units of
participation in the collective investment body in securities
incorporated.
2-In the case of mergers provided for in subparagraphs i) and ii) of the paragraph w ) from Article 2 (1) to the
effects provided for in the previous number add to the following:
a) The liabilities of the collective investment body in securities
incorporated are transferred to the collective investment body in values
embedding securities;
b) The collective investment body in embedded securities
extinguish.
3-A entity responsible for the management of the collective investment body in values
embedding securities confirms immediately, in writing, to the depositary respect that
the transfer of the asset and the liability, when it occurs, has been completed.
SECTION II
Dissolution and settlement
Article 42.
Dissolution
1-Collective investment bodies dissolve themselves by:
a) Course of the period by which they were constituted;
b) Decision of the entity responsible for the management, founded in the interest of the
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participants;
c) Deliberation of the assembly of participants, in the applicable cases, provided that such
possibility is provided for in the management regulation or when, by forecasting this a
admission to trading on regulated market or in trading system
multilateral of the units of participation, this one does not occur in the period of 12
months from the date of constitution of the investment body;
d) In the situations provided for in the contract of society, in the case of the bodies of
collective investment in society-made form;
e) Expiry of the authorization;
f) Withdrawal of consent;
g) Cancellation of the registration, dissolution or any other reason that determines the
impossibility for the managing entity to continue to perform its functions if, in the 30
days subsequent to the fact, the CMVM declares the impossibility of replacement of the
same.
2-The fact that originates the dissolution is:
a) Immediately communicated to the CMVM, in the situations provided for in the paragraphs a ) a and ) from the
previous number;
b) Object of publication by the collective investment body in the system of
dissemination of information from the CMVM as soon as it is notified of the decision of the CMVM,
in the situations provided for in points f ) and g ) from the previous number, or immediately
after the communication provided for in the preceding paragraph;
c) Immediately communicated individually to each participant by the body of
collective investment, pursuant to the provisions of Article 37 (3 a) (6);
d) Object of immediate notice to the public, affixed to all marketing sites
of the units of participation, by the respective commercializing entities.
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3-A dissolution produces effects since:
a) The publication, in the situations provided for in points a ) a and ) of paragraph 1;
b) The notification of the decision of the CMVM, in the situations provided for in the paragraphs f ) and g ) from the
n. 1.
4-A dissolution determines the immediate suspension of underwriting and rescue of the units of
participation and immediate entry into liquidation.
Article 43.
Settlement, sharing and extinction
1-It is liquidatary of the collective investment bodies the responsible entity responsible
by the management, unless otherwise provided in the constitutive documents, or designation
of a different person by the CMVM, in the situations provided for in the paragraphs f ) and g ) of paragraph 1 of the
previous article, in which case the remuneration of the liquidator, fixed by the CMVM, constitutes
charge of the entity responsible for the management.
2-During the settlement period:
a) The duties of information on the value of the units of participation are suspended
and on the composition of the portfolio of the collective investment body;
b) In addition to the duty of elaboration, submission and publication of reports and accounts, it must be
sent monthly to the CMVM an explanatory memory of the evolution of the process
of liquidation, in the case of real estate investment bodies;
c) The liquidator carries out only the operations appropriate to the liquidation, observing in the
disposal of the assets the provisions of this General Regime, specifically in paragraph 4
of Article 84;
d) The liquidator shall not be subject to the standards relating to the activity of the body of
collective investment that are incompatible with the settlement process;
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e) The depositary maintains its duties and responsibilities.
3-The final settlement value per unit of participation is disclosed in the 5 working days
subsequent to its clearance, by the means provided for the disclosure of the value of the
units of participation and composition of the portfolio of the investment body
collective.
4-The deadline for payment to the participants of the product of the settlement of the body of
collective investment, counted from the clearance of the final settlement value
referred to in the preceding paragraph, may not exceed in 5 working days the time limit set for
payment effects of the ransom demand or refund, save if, upon justification
duly substantiated by the liquidator, the CMVM authorizes a higher term.
5-During the period of the liquidation, the liquidator of collective investment body
closed may proceed to partial reimbursements to the participants, on account of the final value
of settlement per unit of participation, provided that:
a) Be assured of payment of all charges chargeable to that, including the
concerning the respect for settlement;
b) There is favourable deliberation of the assembly of participants, save if the regulation
of management to dispense.
6-The accounts of the liquidation of the collective investment body, are sent to the CMVM:
a) Within 5 working days from the date of the closing of the settlement that occurs
at the time of payment of the proceeds of settlement to the participants;
b) In the case of collective investment bodies in a society-shaped manner, on the date of the
commercial registration of the closure of the settlement.
7-The collective investment body considers itself extinct on the date:
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a) From the commercial register of the closure of the settlement of the investment body
collective in a society-shaped form;
b) From the recetion by the CMVM of the accounts of the settlement, in the remaining cases.
8-When the real estate investment body is the real estate promoter and the
legal guarantee of the purchasers of the real estate ends on date after the extinction of the
even, lies the holding entity faithful depositary of the value per se considered reasonable for
bear the costs resulting from the liability charged to the body of
real estate investment.
9-Fishing the warranty period to which the real estate investment body was
thank you and in case you have not been used the totality of the value, you must this balance be
shared by the participants in accordance with the distribution of the units of participation
at the end date of the settlement.
Article 44.
Settlement requirements
1-A The liquidation of a collective investment body for the reason provided for in
point ( b ) of Article 42 (1), is only possible should the investment body
collective has been in activity for at least a year.
2-A from the time the dissolution produces effects, the process of liquidation
becomes irreversible, save by treating themselves from alternative investment bodies of
private subscription.
3-A dissolution of market-traded collective investment bodies
determines the immediate exclusion of trading of the respective units of participation.
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4-Unless authorisation of the CMVM to the contrary, the liquidation of a body of
collective investment in the terms set out in paragraph 1 makes it impossible to constitute the constitution by the
same managing body or promoter, within 180 working days, of a new
collective investment body with identical investment policy.
5-Within the scope of the settlement process, the divestments of financial instruments do not
admitted to trading on regulated market cannot be effected on the basis of
assessment effected more than 15 working days ago.
6-The charges relating to the settlement of collective investment bodies only
may be charged to the participants in the case provided for in ( c) of the Article 1 (1)
42. and provided that it is provided for the respective constitutive documents.
7-In the event that it is not possible for the liquidator to proceed to the payment of the product of the
settlement to some of the participants within the deadline set for the completion of the
settlement, adopts the necessary procedures to safeguard this right,
particularly by means of consignment in deposit of the amounts due, owing
that fact is communicated immediately to the CMVM.
Article 45.
Deadline for settlement
1-Unless otherwise provided in the constitutive documents or by permission of the
CMVM, the deadline for settlement, from the date of the dissolution, may not be higher
a:
a) 15 working days, in the case of collective investment bodies in values
securities;
b) 30 working days, in the case of alternative investment bodies in values
securities;
c) Two months, in the case of investment bodies in non-financial assets;
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d) One year, in the case of real estate investment bodies.
2-A CMVM may extend the time limits provided for in the preceding paragraph, the application
suitably reasoned of the entity responsible for the management.
Article 46.
Liability of the liquidator
The liquidator responds for the damage caused to the participants as a result of
errors and irregularities in the liquidation process that are attributable to it.
Article 47.
Settlement accounts
1-For the purposes of Rule 43 (3), the final settlement value per unit
of participation is accompanied by assent of the auditor of the body of
collective investment.
2-The settlement accounts referred to in Article 43 (6) include the balance sheet, the
demonstration of the results, the demonstration of the cash flows, the auditor's report
of the collective investment body and the settlement report.
3-Of the settlement report stated, namely:
a) The discrimination of all the operations effected with a view to settlement,
indicating expressly when relative to admitted financial instruments
or traded in these trading structures the operations that were carried out
out of regulated market or multilateral trading system, and
including the identification of the counterparties in the case of these latest operations and the
transactions relating to real estate;
b) The discrimination of partial reimbursements effectuated in the period of the settlement;
c) Statement by the liquidator in the sense that they have been acaucated all rights
of the participants of the collective investment body.
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Article 48.
Reversal of liquidation
1-A reversal of the settlement of underwriting alternative investment bodies
particular is possible, upon permission of the CMVM, may not, however,
take place:
a) Before approved at an assembly of participants;
b) Before the liability has been liquidated;
c) As long as they keep the causes of dissolution.
2-A The deliberation referred to in para. a ) of the preceding paragraph provides for the terms and conditions
of the reversal, including the date of production of effects, being always allowed for the rescue,
without the payment of the respective commission, from the units of participation by the
participants who have voted against reversal.
3-For the purposes of the deliberation provided for in the a ) of paragraph 1, the liquidator makes available to the
participants the reversal accounts of the settlement, which include the balance sheet, the
demonstration of the results, the demonstration of the cash flows, the auditor's report
of the alternative investment body and the settlement reversal report.
4-Of the settlement reversal report stated, namely:
a) The discrimination of all the operations effected since the time of the dissolution;
b) Statement by the liquidator in the sense that they have been acaucated all rights
of the participants of the alternative investment body.
5-For the purposes of calculating the amount due under the terms of paragraph 2, they are applicable, with the
due adaptations, Art. 60 (2) and Article 62 (4).
6-Received the application for permission, CMVM pronounces within 20 days of counting
of the date of receiving the request completely instructed or the sending of information
supplementary case are requested.
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7-In the absence of notification of the decision within the period indicated in the preceding paragraph shall be deemed to be
if it deposed the request.
CHAPTER IV
Collective investment bodies in a society-shaped way
Article 49.
Types
They are collective investment bodies in a society-shaped way:
a) The furniture investment companies, which can be organisms of
collective investment in securities, investment bodies
alternative in securities or investment bodies in assets not
financial; and
b) Real estate investment companies, which are investment bodies
real estate.
Article 50.
Capital of collective investment bodies under society-shaped
1-The minimum initial capital of collective investment bodies in a society-shaped way
self-managed is € 300000.
2-The collective investment body in a society-shaped way can issue shares of
special category, the capital of which is exclusively affection for the exercise of its activity,
in the terms set out in Article 12 (4).
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3-Without prejudice to the provisions of the preceding paragraph, the capital of investment bodies
collective in the society-shaped form of variable capital varies depending on the subscriptions and the
rescues.
4-The capital of collective investment bodies in the society-shaped form of fixed capital is
defined at the time of its constitution, pursuant to the Code of Societies
Commercials, with the possible changes arising from increase and reduction of the
capital.
Article 51.
Administration, surveillance and holders of qualified participations
1-The governing body of collective investment bodies in a society-shaped way
self-managed is composed of:
a) Persons with suitability and proven professional experience, taking into account,
specifically, the type of activity carried out by the investment body
collective in a society-shaped form;
b) At least two people; and
c) A suitable minimum number of independent members.
2-The watchdog of the collective investment body under society-shaped
self-managed is composed of a majority of independent members.
3-A The independence is affixed to the terms of Article 75 (3), being still applicable to the
members of the governing body of the collective investment body under form
self-managed society-level the provisions of paragraph 4 of the same article.
4-To the collaborators and the members of the body of the body of the
collective investment in self-managed society-shaped form that exercise decision-making functions and
implementation of investments is applicable to the provisions of Article 75 (5)
5-A The designation of new members of the administration or supervisory body shall be
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immediately communicated to the CMVM, and may this object to the same within 15
days.
6-Qualified holding holders of the collective investment bodies under
self-managed society-shaped form should be elderly taking into account the need for
ensuring sound and prudent management, owing to the identity of new holders with
qualified participations to be immediately communicated to the CMVM.
7-On the appreciation of the requirements of idoneity and professional experience are applicable, with
the due adaptations, Articles 30-D and 31, the paragraphs 1, 2 and 11 of Article 33 and the article
103. of the General Regime of Credit Institutions and Financial Societies, approved
by Decree-Law No. 298/92 of December 31.
Article 52.
Management of the collective investment body under society-shaped
1-It is the competence of the governing body:
a) The management of heritage in the exclusive interest of the participants;
b) The assignment of depositary.
2-Should the collective investment body in a society-shaped manner be heterogerated, the
competence referred to in ( a ) of the previous number is taken up by the managing entity
designated, competed with the governing body the definition of the management policy, in the
terms set out in the following article, as well as the surveillance of the managing entity.
Article 53.
Responsibility
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1-The members of the governing bodies and supervisory body of the investment body
collective in a society-based form respond solidly to each other, in the face of the
participants and in the face of the collective investment body in a society-shaped manner, by the
non-compliance or defective compliance with legal and regulatory duties
applicable and obligations arising from the constitutive documents of the same.
2-In the case of collective investment body in a heterogerated society-shaped form, the
members of the governing bodies and surveillance of the same, the entity that has
been assigned to the management, as well as the members ' respective members of the organs of
administration and surveillance, respond in solidarity with each other, in the face of the participants
and in the face of the collective investment body in a society-shaped manner, by the
non-compliance or defective compliance with legal and regulatory duties and the
obligations arising from the constitutive documents, applicable to the managing entity.
Article 54.
Assignment of managing entity by collective investment body under form
heterogerous societary
1-Collective investment bodies in a heterogerated society-shaped form can only
to designate for the exercise of the respect management the entities provided for in Article 65.
2-A The designation provided for in the preceding paragraph shall be communicated to the Bank in advance
from Portugal.
Article 55.
Contract with the managing entity
1-A relationship between the collective investment body in a heterogerated society-shaped society-shaped
and the designated managing body for the exercise of the respect of the management shall be governed by contract
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written, which shall contain, in particular, the following elements:
a) The denomination and seat of the designated managing body;
b) The conditions of replacement of the designated managing body, auditor or any
another third party mandated for investment management or risk management functions;
c) The investment policy of the collective investment body;
d) The income distribution policy;
e) The policy for the exercise of the voting rights attached to the shares held;
f) The lending policy of financial instruments and the policy of
contraction of funding;
g) The remuneration for services provided by the managing body;
h) The value, manner of calculation and conditions of collection of the management commissions,
subscribing, rescue and transfer of shares;
i) The rules for determining the value of shares and the value of underwriting and ransom
or refund;
j) The moment of the day used as a reference for the determination of the value of the
actions;
k) The conditions for underwriting and rescuing or redemption of shares for the value to be disclosed;
l) The minimum number of shares that may be required under each subscription;
m) The maximum period for the purposes of the payments of the ransom requests or
reimbursement;
n) The conditions for the suspension of the underwriting and rescue operations of shares;
o) The categories of existing shares and the definition of the respective special rights, case
applicable;
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p) The way to proceed with the amendment of the adopted policies and rules;
q) The articulation with respect to the handling of complaints from participants,
specifically as to the information to be provided by the managing body to the body
of collective investment in a heterogerated society-shaped society-shaped form; and
r) The reporting duties of the managing body to the collective investment body
in a heterogerous society-shaped form.
2-The reporting provided for in paragraph r ) of the preceding paragraph shall guarantee to the body of
collective investment in a society-shaped form heterogerate all the information that it
allow for the monitoring of the performance of the duties incumbent on the managing entity,
in particular information concerning the following elements:
a) The form and the time at which the managing body informs about the eventual
subcontracting of investment management and risk management functions to
third-party entities;
b) The form and time at which the managing body makes available its
internal operational documents, such as their risk management process and
your reports on the compliance monitoring system;
c) The information that the entity gestures communicates with respect to any
infractions committed by the same in relation to the legal provisions, the documents
constitutive or to the contract between both, as well as the form and time frame in which
such information is communicated;
d) The policy of processing operations adopted by the managing body;
e) Description of the procedures adopted with regard to the registration and conservation of
documents;
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f) The policy of conflict of interest and the adopted procedures relating to
operations carried out by the managing entity, by the members of the governing bodies
social and by the respected collaborators;
g) The form and the time at which the managing body must notify the suspension
temporary and the restart of underwriting or rescue of the shares;
h) The mechanisms for the notification and resolution of errors concerning the valorisation of the
actions.
3-The contract referred to in paragraph 1 shall still include the rules on coordination between
both, specifically:
a) Should they have the same accounting year, with regard to the drafting of the
respects reports and accounts;
b) If they do not have the same accounting year, the applicable mechanisms for which
the collective investment body in a heterogerous society-shaped form can
get from the entity gestures the information necessary for timely drafting
of your reports and accounts, so as to ensure that the auditor is in
conditions of submitting a report up to the closing date of the financial year
accounting for the collective investment body in a society-shaped form
heterogerate.
Article 56.
Supervisory function of the managing entity
1-A entity managing body of collective investment in society-shaped
heterogerido ensures compliance with the requirements set out in this Regime
General who are the responsibility of this or other entity acting on behalf of the
same.
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2-A entity managing body of collective investment in society-shaped
heterogerido informs immediately the CMVM and, if it is the case, the competent authorities
of the Member State of origin of the body concerned, if it fails to secure the
compliance with the requirements set out in the preceding paragraph.
3-For the purposes of the provisions of the preceding paragraph the CMVM requests the managing entity to
take the necessary measures to ensure compliance due.
4-If, despite the representations made following the application referred to in the preceding paragraph,
the default persists, the collective investment body ceeds power to be
marketed, owing the managing entity to waive the performance of the functions of
management of the same.
5-A CMVM informs the competent authorities of the host Member States
of the managing body of the collective investment body of the impossibility of
marketing of the investment body concerned.
Article 57.
Conditions of exercise of activity of collective investment bodies under
self-managed societtal form
1-Collective investment bodies in self-managed society-shaped form are subject,
with the necessary adaptations, to the:
a) Organization and exercise requirements and the conduct duties of entities
gestures, particularly those relating to subcontracting and remuneration policies;
b) Duties of the managing entities in relation to the collective investment body,
including as to the managed assets, particularly as to the evaluation of the
same, and as to the participating respects, specifically those relating to the
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information;
c) Requirements of own funds applicable to managing companies.
2-Collective investment bodies in self-managed society-shaped form can only
manage their own heritage, and under no circumstances may they manage assets on account of
third parties.
3-A The management referred to in the preceding paragraph shall include the acts provided for in Article 66 and is
remunerated pursuant to Rule 67.
4-The alternative investment bodies in self-managed society-shaped form are still
subject to the provisions of Sections VI and VIII of Chapter I of Title II, owing to
references to "gestures society" or the "managing entity" therein provided for being understood, for
this effect, as " alternative investment body in society-shaped form
self-managed ".
Article 58.
Registration of collective investment bodies in a society-shaped way
The record for the exercise of the activity of the collective investment body under form
self-managed society-based, in the terms provided for in the Securities Code, approved
by Decree-Law No. 486/99 of November 13 depends on the prior authorization and the
constitution of the same provided for in Article 19.
Article 59.
Competence of the general assembly of collective investment bodies under
fixed capital societtal form
In addition to the provisions of Article 61, the general meeting of the investment bodies
collective in the society-shaped form of fixed capital is competent to deliberate on the too many
subjects provided for in the Code of Commercial Societies, save when such rules if
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show incompatible with the nature of these investment bodies or with the
provisions of the present General Regime.
CHAPTER V
Alternative investment bodies closed
Article 60.
Terms of the underwriting, rescue and variation of the number or value of the units of
participation
1-The constitutive documents of the closed alternative investment bodies
predict:
a) The conditions and criteria relating to the initial subscription, the duration of which, subject to a
limit of six months, it may not be more than 25% of the initial period of duration of the
alternative investment body;
b) The possibility of increase or reduction of capital provided that:
i) Have elapsed at least six months since the date of constitution of the
alternative investment body or since the date of achievement of the last
increase or decrease;
ii) The increase or reduction has been the object of approval in assembly of
participants summoned to the effect, under the conditions set out in the regulation
of management, and the deliberation shall also define the conditions of the increase,
particularly if the underwriting is reserved to the current participants;
iii) The underwriting or ransom price, defined by the entity responsible for the
management, correspond to the value of the settlement day participation unit
financial, confirmed by opinion of the auditor of the investment body,
which is expressly pronounced on the assessment of the heritage of the body
of alternative investment.
2-For the purpose of sub-paragraph iii ) of the paragraph b ) of the previous number, dealing with organisms
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of alternative investment whose units of participation are traded in
regulated market or multilateral trading system, the responsible entity
by the fixed management the price in the range between the value ascertained in the terms referred to in that
subparagraph and the value of the last quotation verified in the reference period defined in the
prospeit of issuance, pronouncing the auditor equally on the fixed price.
3-A reduction of capital only if it can be checked in case of refund of the units of
participation of the participants who have expressed against the extension of the
duration of the alternative investment body and in excecional cases, duly
warranted by the entity responsible for the management.
4-A CMVM may deduct opposition, within 15 days, to the increase or reduction of the
capital, save with respect to alternative investment bodies directed
exclusively to qualified investors or private underwriting, in which case
increase or decrease become only subject to communication to CMVM.
5-A CMVM may define, by regulation, the terms of disclosure of the information
contained in the opinion of the auditor, in the assessment reports considered for the purposes of the
increases and decreases in the capital of the investment body and in other elements of
information.
Article 61.
Assemblies of participants
1-In the closed alternative investment bodies depends on favorable deliberation
of the assembly of participants:
a) The overall increase in management and deposit commissions;
b) The significant change in investment policy, of the distribution policy of
income and the term of calculation or disclosure of the value of the units of
participation, in the terms defined in regulation of the CMVM;
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c) The issuance or extinction of units of participation for purposes, respectively, of
underwriting or redemption and respect conditions;
d) The increase and reduction of capital and respect conditions;
e) The extension of the duration of the alternative investment body;
f) The merger, spinoff and transformation of the alternative investment body;
g) The replacement of the entity responsible for the management at the initiative of this or the
participants, except when, being the initiative of the entity responsible for the management,
if you check the transfer of the powers of administration and the structure of resources
humans, materials and technicians for an integrated gestures society in the same
economic group;
h) The settlement of the alternative investment body, when the latter does not
determined duration or when it is intended for settlement to occur before the term
of the duration initially planned;
i) Other matters that the law or the constitutive documents make depend on
favourable deliberation of the assembly of participants.
2-A Assembly of participants is not competent to rule on decisions
concrete investment or approve guidelines or recommendations on this matter
in addition to the provisions of the paragraph b ) of the previous number.
3-A convocation and the operation of the assembly of participants shall be governed by the provisions of
in the Code of Commercial Societies for Shareholders ' Assemblies, save forecast
diverse of the constitutive documents, under the terms of the ( d ) of Article 159 (3).
Article 62.
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Duration
1-The closed alternative investment bodies of determined duration do not
may exceed 10 years, being allowed to extend, one or more times, by
period not exceeding the initial one, by deliberation of the assembly of participants
in this direction with a six-month advance notice in relation to the term of the duration of the
body.
2-Being deliberated to extend the rescue of the units of participation only is
allowed to the participants who have voted against the extension.
3-Being deliberated to non-prolongation and there is an interest of the participants who have
voted in favour of the extension in the continuum of the body, this can be extended
verified the following conditions:
a) There is deliberation favourable to the prolongation of the body only with the
participants who voted in favour of the extension;
b) There is agreement as to the application of the criterion set out in the following number for the value
of the units of participation or as to the other criterion that the assembly of
participants define as well as how much to the criteria of divesting the assets to
effect of the payment of the rescues, if they are not previously defined in the
management regulation;
c) If you check the minimum requirements for constitution of investment body
closed alternate.
4-The value of the unit of participation, whose rescue is requested under the provisions of the
n. 2, corresponds to that of the last day of the period initially planned for the duration of the
alternative closed investment body, confirmed by the opinion of the auditor of the
investment body.
5-Article 60 (2) is also applicable for the purposes of the preceding paragraph.
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6-To the financial settlement of the rescue of the units of participation applies the provisions of the
n. paragraphs 1 and 2 of Article 45, with due adaptations.
7-The closed alternative investment bodies of indefinite duration are
authorised if in the constitutive documents is planned to be trading on market
regulated or in multilateral trading system of its units of
participation.
8-The application for admission or selection to the negotiation of investment bodies
alternate closed for undetermined duration occurs after the end of the respective period
of initial subscription, within the maximum period of 90 days.
Article 63.
Public subscription
In cases where the constitution of the alternative investment body closed
constitutes public offer pursuant to the provisions of Title III of the Code of Values
Securities, approved by the Decree-Law No. 486/99 of November 13, the approval of the
public offering prospeit implies the approval of the alternative investment body
closed by the CMVM under the terms of this General Regime.
Article 64.
Subjection to the particular underwriting scheme
1-Mediant authorisation of the CMVM, the alternative investment bodies
constituted through public offering of underwriting may become subject to the scheme of the
alternative private underwriting investment bodies.
2-A The authorization referred to in the preceding paragraph depends on the verification of the following
conditions:
a) The alternative investment body has a number of participants lower than
30;
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b) Their units of participation do not find themselves admitted to trading in
regulated market or in multilateral trading system; and
c) The favourable agreement of all participants has been obtained.
3-A CMVM pronounces within 20 days from the date of receiving the application
completely instructed or from the submission of further information if they are
requested.
4-In the absence of notification of the decision within the period indicated in the preceding paragraph shall be deemed to be
if it deposed the request.
Title II
From the entities related to the collective investment bodies
CHAPTER I
Managing entities
SECTION I
General provisions
Article 65.
Managing entities
1-The collective investment body that is not self-managed can be managed by:
a) Society manager of investment funds furnishing, if it is an organism
of collective investment in securities, an investment body
alternative in securities, an investment body in assets not
financial or a real estate investment body;
b) Managing company of real estate investment funds, if it is an organism
of real estate investment.
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2-Alternative investment bodies in closed securities and the
alternative investment bodies in non-financial assets may still be
managed by credit institutions referred to in points a ) a d ) of Article 3 of the Regime
General of Credit Institutions and Financial Societies, approved by the Decree-Law
n ° 298/92 of December 31, which have own funds of not less than € 7
500000, provided that the assets that make up the portfolios of the investment bodies
alternative under management of these do not exceed, in total, the threshold of:
a) € 100000000, when wallets include assets acquired through recourse to the
leverage effect;
b) € 500000000, when alternative investment bodies do not resort to the
leverage effect.
3-A The managing body responds, in the face of the participants, by the default or
defective compliance with applicable legal and regulatory duties and obligations
arising from the constitutive documents of the collective investment bodies.
4-A The managing body indemnifies the participants, in the terms and conditions set out in
regulation of CMVM, for the damage caused as a result of situations to you
imputable, specifically:
a) Errors and irregularities in the assessment or imputation of operations to the portfolio of the
collective investment body;
b) Errors and irregularities in the processing of the subscriptions and rescues;
c) Collection of undue amounts.
Article 66.
Functions of the managing entities
1-In the performance of the duties relating to the management of collective investment body,
compete with the managing entity:
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a) Managing the investment by practicing the necessary acts and operations to the good
concretization of the investment policy, in particular:
i) The management of heritage, including the selection, acquisition and disposal of assets,
complying with the necessary formalities for your valid and regular transmission and
the exercise of the rights related to them; and
ii) The management of the risk associated with the investment, including its identification,
evaluation and follow-up.
b) Administrate the collective investment body, in particular:
i) Providing the necessary legal and accounting services to the management of the
collective investment bodies, without prejudice to the specific legislation
applicable to these activities;
ii) Clarify and analyze the questions and complaints of the participants;
iii) Evaluate the portfolio and determine the value of the units of participation and issue
tax declarations;
iv) Comply with and monitor the observance of the applicable standards, of the documents
constitutive of collective investment bodies and contracts
celebrated in the framework of the activity of them;
v) Proceeding to the registration of the participants, if applicable;
vi) Distribute income;
vii) Issue, rescue or reimburse units of participation;
viii) Effecating settlement and clearing procedures, including the sending of
certificates;
ix) Record and conserve the documents.
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c) Commercialize the units of participation of collective investment bodies
under management.
2-In the exercise of functions relating to the management of investment body
alternative, to the managing entity competes still, with respect to the assets of this,
particularly:
a) Providing the necessary services to the fulfillment of their fiduciary obligations;
b) Managing real estate, managing facilities and controlling and supervising the
development of the projects object of real estate promotion in their respective respects
phases;
c) Providing other services related to the management of the investment body
alternative and assets, including companies, in which you have invested on account of the
alternative investment body.
3-A The managing body may only be authorised to provide the activities provided for in the sub- b )
and c ) of paragraph 1 and paragraph 2 if it is authorized for the exercise of the activity referred to in the
point ( a ) of paragraph 1.
Article 67.
Remuneration
The exercise of collective investment body management activity is remunerated
through a management committee, and this may include a variable component
calculated as a function of the performance of the collective investment body, pursuant
provided for in regulation of the CMVM.
SECTION II
Conditions of access to activity by managing entities
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Article 68.
Activities allowed to the managing company of investment funds Furniture
1-A The managing company of furniture investment funds has by usual activity a
management, either alternative or cumulatively, of collective investment bodies in
securities, alternative investment bodies in securities and of
investment bodies in non-financial assets.
2-Without prejudice to the provisions of the preceding paragraph, the managing company of funds of
investment furniture whose usual activity is the management of bodies of
collective investment in securities may still, upon prior registration in
CMVM, exercise the following activities:
a) Discretionary and individualized management of portfolios on account of outrain, including
those corresponding to pension funds and institutions of realization of plans of
occupational pensions, on the basis of mandate conferred by the participants, the
exercise pursuant to the Decree-Law No. 163/94 of June 4, as amended by the
Decrees-Law No 17/97 of January 21, and No. 99/98 of April 21, provided that the
portfolios include financial instruments listed in Section C of Annex I to
Directive No 2004 /39/CE, of the European Parliament and of the Council of April 21
of 2004;
b) Consultancy for investment relating to financial instruments to which if
refers to the previous point;
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c) Registration and deposit of units of participation of investment bodies
collective.
3-When the usual activity of the holding company of investment funds furnishings
cover the management of alternative investment bodies in securities or of
investment bodies in non-financial assets:
a) The activities referred to in points a ) and b ) of the preceding paragraph may respect the
other assets;
b) The society may still exercise the activity of fearful and transmission of orders
relating to financial instruments.
4-A The managing company of furniture investment funds can only be allowed to
exercise the activities referred to in points b ) and c) of paragraph 2 or (2) b ) of the number
previous to accessory if it is authorized for the exercise of the activity referred to in
point ( a ) of paragraph 2.
5-Without prejudice to the provisions of paragraph 1, the managing company of investment funds
furnishings can still manage incidentally:
a) Investment bodies in venture capital, investment bodies in
social entrepreneurship, and specialized alternative investment bodies,
on the terms provided for in the respective legal regime, and funds provided for in legislation
of the European Union whose investment covers eligible assets for bodies of
collective investment in securities and investment bodies in
capital of risk;
b) Real estate investment bodies.
Article 69.
Activities allowed to the managing society of real estate investment funds
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The managing society of real estate investment funds has for habitual activity to
management activity of real estate investment bodies, and may still:
a) Providing consultancy services for real estate investment, including achievement
of studies and analyses concerning the real estate market; and
b) Proceed to the individual management of real estate heritage in accordance with the
legal and regulatory provisions applicable to the management of portfolios on account of
listen.
Article 70.
Registration of investment fund holding companies
1-The application for the registration of holding companies of investment funds of furniture and
companies managing real estate investment funds, presented under the
provisions of Article 298 of the Securities Code, approved by the Decree-Law
n ° 486/99 of November 13, shall contain, in addition to other elements provided for in
legal or regulatory provisions, the following information on each body of
collective investment that the society intends to manage:
a) Information on investment strategies, including the types of organisms
underlying if the collective investment body is a fund of funds, and the
policy of the managing society with regard to the use of the effect of
leverage, on the risk profiles and other characteristics, including information
on the Member States or third countries in which those funds are
established or are expected to be established;
b) Information about the place where the collective investment body of type
main is established, should the collective investment body be of the type
food;
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c) The constitutive documents;
d) Information on the mechanisms foreseen for the contracting, pursuant to the
article 120, of the depositary;
e) The additional information referred to in Article 221 (1) where applicable.
2-A CMVM may limit the scope of the management activity of investment bodies
alternative, particularly with respect to investment strategies.
Article 71.
Own funds
1-When the overall net value of portfolios under management of the managing companies of
investment funds furniture and investment fund holding companies
real estate exceeds € 250000000, the same are required to constitute an amount
supplementary fund of own funds equal to 0.02% of the amount in which the net value
global of portfolios under management exceeds such an amount.
2-The managing companies referred to in the preceding paragraph may be permitted to not
constitute up to 50% of the supplementary amount of own funds to which the
previous number if they benefit from a guarantee of the same amount provided by a
credit institution or an insurance company with a registered office in the European Union.
3-Without prejudice to the provisions of the following number, the sum of the initial capital with the amount
supplemental of own funds required may not be more than € 10000000.
4-Irrespective of the amount of the requirements referred to in the preceding paragraphs, the
own funds of the managing companies referred to in paragraph 1 shall not be less than the
amount provided for in Article 97 (1) of Regulation (EU) No 575/2013 of the
European Parliament and of the Council of June 26.
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5-For the purposes of the provisions of paragraph 1, it is understood by portfolio under management:
a) Any collective investment body managed by the gestalt society,
including the collective investment bodies in relation to which
subcontracted the management functions and excluding investment bodies
collective that manages by subcontracting;
b) Any collective investment body in a society-shaped form for which the
gestural society is the designated entity for the respect of management.
6-Case the own funds of the managing companies of investment funds Furniture
or from the holding companies of real estate investment funds present a
amount less than € 125000 or that imposed by the provisions of paragraph 1, the Bank of
Portugal, upon duly reasoned request, may grant a deadline
reasonable for the rectification of the situation or for the cessation of the activity if the
circumstances to be justified.
7-A end of covering possible risks of professional liability arising from
activities that the managing societies provided for in paragraph 1 may exercise in the terms of
present General Regime, the holding companies that are exclusive or
cumulatively to the management of alternative investment bodies should, in the terms
provided for in the Delegated Regulation (EU) No 231/2013 of the European Commission of 19
of December 2012:
a) Hold enough supplementary funds sufficient to cover possible risks
resulting from professional civil liability, in the title of negligence; or
b) Celebrate a sufficient professional civil liability insurance that covers the
liability for acts of professional negligence and that is appropriate to the risks
covered.
8-The own funds, including any additional own funds referred to in the
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point ( a ) of the previous number, should be invested in liquid assets and should not
include speculative positions.
9-The gestural societies that exercise the activities referred to in the a ) of paragraph 2 of the
article 68 and in the b ) of Article 69 shall be still subject, as far as its
activity, to the prudential supervisory regime applicable to investment firms.
SECTION III
Organization and exercise
SUBSECTION I
General provisions
Article 72.
Standards applicable
Without prejudice to the provisions of this General Regime, the managing body shall be subject to the
principles, conditions, terms and requirements applicable to the organization and exercise of the
financial intermediaries provided for in the General Regime of Credit Institutions and
Financial Societies, approved by the Decree-Law No. 298/92, of December 31 and in the
Code of Securities, approved by the Decree-Law No. 486/99, of 13 of
november.
Article 73.
Duty to act in the interest of the participants
1-For the purposes of the provisions of Article 15, the managing body shall ensure that the
participants from the collective investment bodies that generate are treated
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equitably, refraining from putting the interests of a group of participants
above the interests of any other group of participants.
2-A The managing body shall give prevalence to the interests of the participants, both in
relation to their own interests as in relation to the interests of the entities
provided for in Article 147 (1).
3-Whenever a managing body manages more than one body of
collective investment should consider each of them as a customer, with a view to
prevention of conflict of interest and, when unavoidable, their resolution according to
principles of equity and non-discrimination.
4-A managing body should adopt appropriate policies and procedures to prevent
maladministration practices with respect to which it can reasonably be predicted to be
that affect the stability and integrity of the market.
5-Dating performance to the duty of acting in the interest of the participants, the entity
gestures:
a) Does not charge or imslut to the collective investment body, or to its
participants, costs that are not expected to be provided in the respects documents
constitutive;
b) It shall ensure the appropriate training of the entities entrusted with the marketing,
providing, in proper way and in appropriate time, relevant information about the
collective investment body and the units of participation to the entities
marketers.
Article 74.
Duty of due diligence
The managing body adopts a high degree of diligence in selection and follow-up
continuous of the investments, in the interest of the participants of the investment bodies
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collective that manages and the integrity of the market, ensuring that:
a) It has knowledge and understands the nature and operation of the assets
that integrate the portfolios of the collective investment bodies that generate;
b) Adopts written policies and procedures in relation to the duties of diligence to
which is subject;
c) Applies effective mechanisms in such a way as to ensure that investment decisions
on behalf of the collective investment bodies are held in
compliance with your goals, investment policy, and risk limits.
Article 75.
Independence and impediment
1-The managing body of managing entity integrates a suitable minimum number of
independent members, listening, among other factors, to the dimension of the entity
gestures and to that of the governing body itself.
2-The supervisory body of the managing body shall be composed of a majority of members
independent.
3-Independent is deemed to be the member who is not associated with any group of
specific interests in the managing body nor does it find itself in any circumstance
susceptible to affect your exemption from analysis or decision-making.
4-Cannot be qualified as independent members persons who, in a manner
direct or indirect, provide services or maintain significant business relationship, or the
have done in the two years antecedent, with the managing body or society that with
this one finds itself in domain or group relation.
5-Without prejudice to the provisions of Article 33 of the General Regime of Credit Institutions and
Financial Societies, approved by the Decree-Law No. 298/92 of December 31, is
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vetted to the collaborators and the members of the body's governing body
gestures to exercise decision-making and execution functions of investments or of any functions
nanother entity responsible for the management of collective investment body that
exercise a competing activity.
6-The managing entities communicate to the Bank of Portugal, as soon as they take
knowledge, the facts referred to in paragraph 4 that are super-venient to their registration and
that relate to independent members of the governing body.
Article 76.
Subcontracting
1-A subcontracting of functions within the management of investment bodies
collective, is found subject to the terms, principles and requirements set out in the Code of
Securities, approved by Decree-Law No. 486/99, of November 13, since
that do not counteract the cumulative fulfilment of the following conditions:
a) The subcontractor entity becomes subject to the same duties as they impend on the
managing entity, particularly for the purpose of supervision;
b) Submission of the subcontracting contract project to CMVM, owing to CMVM
transmit right away, should the subcontracting respect a body of
collective investment in securities authorized in another Member State, à
competent authority of the State-Member State of origin of the said body
information regarding subcontracting;
c) The managing body must be able to justify the entire subcontracting structure with
objective reasons;
d) The subcontractor entity shall have sufficient resources to exercise the
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respects functions and those who effectively conduct their activities must be
people with the idoneity and proven experience;
e) In case subcontracting concerns the investment management function provided for in the
point ( a) of Art. 66 (1), can only be concluded with registered entities
for the exercise of the management activity of collective investment bodies or
of management of portfolios on account of outrain, or, should this condition not be
satisfied and be in question an alternative investment body driven
exclusively to qualified investors, upon prior authorisation from the CMVM,
by staying the subcontracted entities subject to the criteria of apportionment of
investments defined periodically by the managing entity;
f) In case subcontracting concerns the investment management function provided for in the
point ( a) of Article 66 (1) and the subcontractor entity is from a third country,
in addition to the requirements of the preceding paragraph shall be ensured the cooperation between
CMVM and the supervisory authority of the entity concerned;
g) Subcontracting cannot compromise the effectiveness of the oversight of the entity
gestures, owing not to, inter alia, to prevent her from acting, or to manage the body of
collective investment in the interest of its participants;
h) The investment management function may not be subcontracted to the depositary or the
other entities whose interests may collide with those of the managing entity or with
those of the participants, and the managing body shall record the assessment carried out in this
scope;
i) The prospearer of the collective investment body shall discriminate against the functions which
the managing entity is authorized to subcontract.
2-A The managing body shall be responsible for compliance with the provisions governing its
activity independently of the subcontracting of third parties for the realization of
functions of their competence.
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3-A subcontractor entity may subcontract any functions that have been
subcontractors, provided that prior to subcontracting check out the following:
a) Consent of the managing entity;
b) The managing body has notified the CMVM;
c) The conditions set out in the preceding paragraphs are shown to be fulfilled,
understanding that all references to the first "subcontractor" will be
construed as references to the second "subcontractor";
d) Agreement of all the participants, in the case of the particular underwriting bodies.
4-Should the second subcontractor subcontract in turn some of the functions that
have been subcontracted, apply, with the necessary adaptations, the conditions
established in the preceding paragraph.
Article 77.
Replacement of the managing entities
1-Being provided for in the constitutive documents of the collective investment body
and provided that the interests of the participants and the regular operation of the market do not
are affected, the managing body of the collective investment body may be
replaced upon authorization of the CMVM.
2-In the closed alternative investment bodies, participants may apply for
the replacement of the managing entity.
3-A The authorisation decision is notified to the applicant within 15 days of the
order receiving completely instructed, becoming effective 40 days after the date of
notification of a decision of deinjury or after the course of that period, or on date
later indicated by the applicant.
4-If the application is instructed in an insufficient form, the CMVM, before refusing the application,
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notifies the applicant giving you the maximum period of 10 days to supply the insufficiency and
to pronounce itself as to the appreciation of the CMVM.
5-The time limit referred to in paragraph 3 shall be suspended by the effect of the notification referred to in the number
previous.
6-In the absence of a decision of the CMVM within the time limit set out in paragraph 3, the authorisation
considers itself granted.
7-The application for replacement of the managing body is instructed with the documents
amended constitutives accordingly, and these are to be disclosed at the time in
that the replacement becomes effective.
Article 78.
Policy for remuneration
1-A The managing body shall establish and implement remuneration policies that are
consenting to and promote sound and effective management of risks and do not encourage the
risk-taking incompatible with the risk profiles and constitutive documents
of the collective investment bodies under management, in a manner and in the measure
suitable to their size and internal organisation and to nature, scope and complexity
of your activities.
2-A The remuneration policy shall cover:
a) The remunerations and too much retributive benefits;
b) The categories of collaborators, including the executive members of the bodies
social, those responsible for the assumption of risks and control functions and the
collaborators who earn a total remuneration that integrates them in the same group
of remuneration from the previous categories and whose professional activities have
a significant impact on the risk profile of collective investment bodies
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under management.
3-A The achievement of remuneration policies and practices respects the provisions of Annex I
to the present General Regime and in regulation of the CMVM.
SUBSECTION II
Internal organization
Article 79.
Risk assessment and management
1-In the application of its risk management policy and depending on the nature of the
forecasted investment, the managing entity shall formulate forecasts and effect analyses
regarding the contribution of investment to the composition, the liquidity and the profile of
risk and yield of the portfolios of the collective investment bodies prior to
carry out the investment.
2-The analyses referred to in the preceding paragraph are carried out on the basis of reliable information and
updated, both in quantitative and qualitative terms.
3-A The managing entity adopts appropriate and effective mechanisms, processes and techniques for:
a) Assess and manage at any time the risks to which the organisms of
collective investment that manages are or may be exposed, namely the
liquidity risk, so as to comply at any time with the provisions of the
n Article 10 (2);
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b) Ensure, relatively to collective investment bodies in values
securities and alternative investment bodies in securities that
generate, the fulfilment of the limits on global exposure and the risk of
counterpart, in accordance with Articles 134 and 136;
c) Ensure that the risks of the positions taken and their weight in the global risk profile
are rigorously evaluated on the basis of solid and reliable data and that the
mechanisms, processes and risk assessment techniques are adequately
documented;
d) Carry out, when appropriate, periodic tests to appreciate the validity of the
risk assessment mechanisms ( backtesting ), including estimates and forecasts
based on models;
e) Ensure, in respect of alternative investment bodies, with the exception
of those who are closed non-leveraged, the realization of effort tests ( stress
tests ) periodicals and scenario analyses in relation to the risks arising from
possible changes in the market conditions that may impair the
collective investment bodies, namely that they allow to assess the risk
of liquidity of the same under excecional conditions;
f) Establish, apply and maintain a documented system of relative internal boundaries
to the measures used to manage and control the relevant risks for each body
of collective investment, taking into account all the risks that may be
meaningful to the same and consistent with your risk profile;
g) Confirm in permanence that the level of risk complies with the limit system of
risk, defined in the previous subparagraph for each collective investment body
managed;
h) In the case of effective or forecasted default of the risk limit system of the
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collective investment body, ensure timely remediation actions in the
interest of the participants.
4-A gesturing entity shall ensure, for each autonomous heritage compartment or
collective investment body by itself managed, the coherence between the policy of
investment and the liquidity profile and between each of these and the rescue policy, from
agreement with the established in the constitutive documents.
5-The mechanisms, processes and techniques mentioned in this article are proportional
to the nature, size and complexity of the activities and services provided by the entity
gestures and collective investment bodies under management as well as consistent
with the risk profile of them, in accordance with the terms to be defined in regulation
of the CMVM.
6-For the purposes of the provisions of the c ) of paragraph 3, the assessment of the creditworthiness of the
assets of collective investment bodies should not be based on exclusive or
mechanically in risk notations issued by rating agencies, in the
acetion of the point b ) of Article 3 (1) of Regulation (EC) No 1060/2009 of the
European Parliament and of the Council of September 16, 2009.
7-Taking into account the nature, size and complexity of the activities of the body of
collective investment, the CMVM verifies the suitability of the evaluation processes of
credit of the managing entity, assesses the use of the references to risk notations in the
investment policies of the collective investment bodies and, if warranted,
encourages the mitigation of the impact of such references, with a view to reducing the
exclusive or mechanical dependence of the gestural entities in relation to the notations of
risk.
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Article 80.
Implementation of operations on financial instruments on account of the bodies
of collective investment managed
1-The managing entities must adopt all reasonable measures to obtain the best
result possible for the collective investment bodies when they perform the
operations on financial instruments on account of these, considering the price, the
costs, the speed, the probability of execution and settlement, the volume and the nature or
any other relevant factor.
2-A The relative importance of the factors mentioned in the previous number is determined by
reference to the following criteria:
a) The objectives, the investment policy and the specific risks for the organisms
of collective investment, in accordance with the provision in the constitutive documents
of the collective investment bodies;
b) The characteristics of the operation;
c) The characteristics of the financial instruments that are the object of the operation;
d) The characteristics of the places of operation of the operation.
3-A The managing body should adopt effective policies and mechanisms to fulfill the obligation
referred to in paragraph 1.
4-With respect to investment bodies in heterogerated society-form society-forms, the
managing entities must obtain the prior authorization of those regarding the policy of
execution.
5-The managing entities put at the disposal of the participants appropriate information about the
implementation policy adopted, as well as on any relevant changes to it.
6-The managing entities relay annually their policy of performing operations and
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regularly control the effectiveness of the policy and implementing mechanisms in a manner
identify and, where necessary, correct any deficiencies.
7-A review referred to in the preceding paragraph shall also be carried out where it occurs
any relevant change that affects the capacity of the managing entity to continue the
get the best possible results for the collective investment bodies under
management.
8-The managing entities must be able to demonstrate that they have carried out the operations
on account of the collective investment bodies in accordance with their policy
of execution.
Article 81.
Transmission of orders on financial instruments on account of the bodies
of collective investment to other entities for execution
1-The managing entities must take the reasonable steps to obtain the best result
possible for the collective investment bodies when they transmit to third parties,
for execution, trading orders on account of those, considering the factors
referred to in paragraph 1 of the preceding Article and the criteria referred to in paragraph 2 of the same article.
2-To ensure compliance provided for in paragraph 1, the managing entities shall:
a) Adopt a policy that allows them to identify, in relation to each category of
financial instruments, the entities to whom the orders are transmitted, owing
the enforcement agreements concluded with such entities guarantee compliance with the
provisions of this Article;
b) Place at the disposal of the participants appropriate information on the adopted policy
in the terms set out in the preceding paragraph, as well as any relevant changes to the
same;
c) Assess the effectiveness of the policy adopted under (a) and, in particular, the
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quality of execution of orders carried out by the entities in that referred to, and
when it is necessary to correct any insufficiency found.
3-The managing entities shall evaluate the policy referred to in paragraph a ) of the previous number
annually and whenever there occurs any relevant change susceptible to affect the
ability of the managing entity to continue to obtain the best possible results
for the collective investment bodies that generate.
4-The managing entities must be able to demonstrate that they have conveyed orders to
execution on account of the collective investment bodies that manage in
compliance with the policy referred to in para. a ) of paragraph 2.
Article 82.
Treatment of operations
1-A The managing body should adopt procedures and mechanisms that allow for the execution
celere, balanced and expedient of the operations carried out on account of the bodies of
collective investment and which meet, specifically, the following conditions:
a) Registration and affectation of the operations performed on account of the bodies of
collective investment quickly and rigorously;
b) Execution of operations on account of collective investment bodies
comparable in sequential and Celere mode, save if the characteristics of the operation
or the prevailing conditions in the market make such an impracticable or if the
safeguarding the interests of collective investment bodies requires a
alternative procedure.
2-The assets or funds received upon the settlement of the executed transactions
must be entered in a speedy and correct manner in the account of the investment bodies
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collective.
3-The managing entities may not unlawfully use the information relating to
outstanding operations of the collective investment body and must take all the
reasonable measures to prevent the unlawful use of such information by any
person referred to in Article 304 (5) of the Securities Code, approved
by Decree-Law No. 486/99 of November 13.
Article 83.
Aggregation and affectation of orders
1-An aggregation of the execution of an order of a body of a body of
collective investment to an order from another collective investment body or from
another customer or to an order carried out on its own by the managing entity, except
when:
a) It is unlikely that the aggregation of orders will result, in global terms, in a
injury to any collective investment body or client whose order if
intends to aggregate;
b) Be adopted a policy of affectation of the orders that it provides, in terms
sufficiently accurate, an equitable affectation of aggregate orders, including the
mode how the volume and price of orders determine affectation and treatment
of the partial executions.
2-Where to proceed to the aggregation of an order of an investment body
collective with one or more orders from other collective investment bodies or
customers and this aggregate order is only performed partially, the entity gestures
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must reallocate the corresponding transactions in accordance with its policy of affectation
of orders.
3-Where to proceed to the aggregation of the order of a collective investment body
or from another customer with an order carried out on its own, the managing entity:
a) When the aggregated order is only partially executed, it should affect
priority the transactions corresponding to the portfolio of the bodies of
collective investment or other customers and not the portfolio of their own; and
b) It cannot affect the corresponding transactions in a detrimental way to the
collective investment bodies or for the other customers.
4-Notwithstanding the provisions of paragraph a ) from the previous number, if the managing entity can
demonstrate to the collective investment body or its other client, on the basis of
in a reasonable statement of reasons, that without aggregation would not have been possible to perform
the order in such advantageous conditions or that this would not have been executed, the transaction
carried out may be affected in the account of the managing body's own account commensurate,
in accordance with the policy referred to in para. b ) of paragraph 1.
5-To the policy referred to in para. b) of paragraph 1 shall apply to the provisions of Article 330 (9) of the
Code of Securities, approved by the Decree-Law No. 486/99, of 13 of
november.
6-For the purposes of the provisions of this Article, the reference to the order shall also cover the
investment decisions on financial instruments relating to the individual portfolio,
own or customer, or on account of a collective investment body.
Article 84.
Registration of operations
1-A managing body should adopt, for each operation of the investment body
collective, an immediate record of the appropriate information to allow for reconstitution
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of the order or the investment decision and the operation executed.
2-When it deals with transactions on financial instruments, the register referred to in
previous number should include the following data:
a) The name or other denomination of the collective investment body and the person
which acts on behalf of the collective investment body;
b) The details necessary to identify the instrument in question;
c) The quantity;
d) The type of order or operation;
e) The price;
f) In relation to the orders, the date and exact time of the transmission of the order and the
identification of the financial intermediary to whom the order was transmitted or, in
relation to the operations, the date and the exact time of the negotiation decision making and the
execution of the operation;
g) The name of the person who transmits the order or performs the operation;
h) Where applicable, the reasons for the revocation of an order;
i) In relation to performed operations, the identification of the counterparty and the structure of
negotiation.
3-Understand by negotiation structure as referred to in Article 331 (2) of the Code
of the Securities, approved by the Decree-Law No. 486/99, of November 13.
4-Are the object of special registration organized by the managing entity, in the terms set out in
regulation of the CMVM, the operations on financial instruments admitted to the
trading on regulated market held out of regulated market and
multilateral trading system.
Article 85.
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Registration of underwriting and rescue orders
1-A The managing body shall take all reasonable steps to ensure that the orders
of underwriting and ransom relating to collective investment body given by the
customers or participants, or transmitted by merchandising entities, whether
centralized immediately after the respect recetion.
2-The registration of the underwriting and rescue orders provided for in Article 307 of the Code of
Securities, approved by the Decree-Law No. 486/99 of November 13, is
secured by the marketer entities.
Article 86.
Treatment of complaints from participants
1-In the adoption of the complaints handling procedure provided for in paragraph 1 of the article
305.-And of the Securities Code, approved by the Decree-Law No. 486/99, of
November 13, the managing body shall ensure, in particular, the non-existence of
restrictions on the exercise of the right of participants when this and the body of
collective investment in securities are established in Member States
different.
2-For the purposes of the provisions of the preceding paragraph, the managing body shall ensure that the
participant may lodge the complaint in the Member State's respective Member State.
3-The procedure referred to in the preceding paragraph allows participants to submit
complaints in the official language of your Member State.
Article 87.
Requests for information from the public and the competent authorities
In addition to the provisions of the previous article, the managing entities establish procedures and
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appropriate rules to ensure the provision of the information at the request of the public or
of the competent authorities of the Member State where the investment body
collective in securities is authorized.
Article 88.
Term of conservation
Without prejudice to more stringent legal or regulatory requirements, the managing entities
keep on file, by the minimum term of five years, all documents and records
relative to the collective investment bodies that administer.
SUBSECTION III
Conflicts of interest and prohibited operations
Article 89.
Registration of activities that originate conflicts of interest
1-Where any person referred to in Article 304 (5) of the Code of Values
Securities, approved by the Decree-Law No. 486/99 of November 13, detete that the
organisational or administrative mechanisms adopted by the managing entity for the
conflict management of interests are not sufficient to ensure risk prevention
of injury to the interests of the participants of the collective investment bodies
managed, shall immediately inform the body of administration and the organ of
supervision of the managing body, which must make the necessary decisions for
ensure that, in any situation, the managing body acts in the exclusive interest of the
participants.
2-In the situations referred to in the preceding paragraph, the managing body communicates to the
participants, by any appropriate lasting support, the decisions made by the
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organs of administration and surveillance and respect for reasons.
Article 90.
Exercise of voting rights
1-Without prejudice to the duties laid down in Article 20 of the Securities Code,
approved by Decree-Law No. 486/99 of November 13, the managing entity adopts
appropriate and effective policies and procedures relating to the exercise of the rights of
vote associated with the financial instruments that integrate the heritage of the
collective investment bodies, for the exclusive benefit of the respects
participants.
2-A The policy referred to in the preceding paragraph shall establish measures and procedures of:
a) Monitoring of relevant society-related events;
b) Certification that the exercise of voting rights meets the objectives and the
investment policy of the collective investment bodies concerned;
c) Prevention or management of conflicts of interest arising from the exercise of rights
of voting.
3-Constitutive documents include a description of the policy and procedures
referred to in paragraph 1.
4-A policy and adopted procedures identify at least the criteria to be used in the
determination, on a case-by-case one, of the sense of vote in respect of society-political affairs
Taken as of great relevance, enunciating in particular situations and factors
susceptible to motivate, in principle, the opposition or the approval of proposals of
deliberation related to those subjects, and should not enshrine a policy
general of non-systematic participation in general assemblies.
5-A The managing body makes available to the participants free of charge, after solicitation of these,
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detailed information on the measures adopted in implementation of the strategies
referred to in paragraph 1, including the measures and procedures laid down in paragraph 2 and the
necessary clarifications as to the underlying ground for the exercise in concrete
of the voting rights inherent in the respects financial instruments.
6-A The managing body shall not exercise the voting rights inherent in the values
securities held by the collective investment bodies that manages with the objective
of reinforcing the society-based influence of entity that with it finds itself in relation to
domain or group or that is part related to that.
7-The entities responsible for the management communicate to the CMVM and the market the justification
of the sense of exercise of the right to vote inherent in actions of the portfolio of bodies
of collective investment that they manage, in the terms to be defined in regulation of the CMVM.
Article 91.
Operations prohibited to the managing entity
1-The managing entity is vetted:
a) Borrowing and lending credit, including the provision of guarantees, by
own account;
b) Effecing, on its own, the discovered sales of financial instruments;
c) Acquire, on its own, units of participation of bodies of
collective investment, with the exception of those that are frictionable in the type of
money market collective or market investment body
short-term monetary and that they are not by themselves managed;
d) Acquire, on its own, other financial instruments of any nature,
with the exception of public debt securities issued by Eurozone countries and by
instruments of the money market provided for in Article 169;
e) Acquire real estate beyond the indispensable to the direct pursuit of your activity and
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up to the competition of its own funds.
2-To the managing body that is credit institution is not applicable the provisions of the number
previous.
Article 92.
Benefits in favour of the participants
Any remuneration, commission or non-pecuniary benefit, including setbacks,
delivered to the managing entity fully revert to the heritage of the body of
collective investment, when:
a) Does not meet the conditions laid down in Article 313 (1) of the Code of Values
Securities, approved by Decree-Law No. 486/99, of November 13; and
b) Do not correspond to the consideration of the management activity and administration of the
investments of the collective investment body.
SECTION IV
Evaluation of assets
Article 93.
General principles
1-A gesturing entity shall ensure, in relation to each of the bodies of
collective investment by you managed, the establishment of appropriate procedures and
coherent to be able to effect a correct and independent valuation of the assets under
management.
2-A valorisation shall be carried out independently and with the competence, the zeal and the
diligence due.
Article 94.
Competence for valorisation
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1-Without prejudice to the provisions of Article 144, the valorisation of the assets of a body of
collective investment is carried out on the basis of assessment effected:
a) By the respective managing entity, as long as the evaluation function is
functionally independent of portfolios management and the remuneration policy and
other measures ensure that conflicts of interest are mitigated and that it is
avoided an undue influence on collaborators; or
b) By external evaluator, who is to be an independent natural or collective person
of the collective investment body, the respect of the managing entity and any
another person with close relationships with the collective investment body or the
respects gestural entity.
2-Dealing with real estate that integrate the heritage of investment bodies
collective, the evaluation is carried out by two external evaluators, designated " experts
real estate evaluators ".
3-Should the evaluation function of the assets not be performed by an external evaluator,
the CMVM may require the evaluation procedures to be verified by a
auditor registered in the CMVM, if appropriate, or by another external evaluator, on the terms
provided for in regulation of the CMVM.
Article 95.
Responsibility for valorisation
1-A The managing entity is responsible for the correct valuation of the assets under management, by the
calculation of the overall net value of the body, by the reporting to the CMVM and by the disclosure
of this value.
2-A The managing body is accountable to the collective investment body by you
managed and before the participants regardless of evaluator designation
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external.
SECTION V
Managing entities of authorised third countries in Portugal to be managed or
commercialize alternative investment bodies
Article 96.
Application for authorisation and elements of connection to Portugal
1-Must obtain prior authorization from the CMVM the third country managing entity that
intend to:
a) Only to manage one or more alternative investment bodies constituted in
Portugal, intended exclusively for qualified investors;
b) Commercialize, exclusively together with qualified investors, various bodies
of alternative investment from the European Union and third countries, provided that
Portugal to be the Member State where to market most of these
organisms.
2-Must submit application for prior authorization to the CMVM the country's managing entity
third that intends to:
a) Managing one or more alternative investment bodies of the European Union since
that most of the same are constituted in Portugal or be managed in the
national territory the largest volume of active respects;
b) Commercializing a single alternative investment body of the European Union
or a single alternative country investment body of third country, provided that
Portugal is the Member State of origin of the body or the only State-
Member where you intend to commercialize the same;
c) Commercializing a single alternative investment body of the European Union
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or commercialize a single third country alternative investment body
in several Member States, provided that Portugal is the Member State of origin
of the body or one of the Member States where it intends to commercialize the
same;
d) Commercialize several alternative investment bodies of the European Union,
provided that Portugal is the Member State of origin of the various bodies or the
Member State where you intend to commercialize most of these bodies.
3-When the third country managing entity wishing to develop the activities
referred to in the preceding paragraph shall consider that, in the light of the criteria of the preceding paragraph,
there may be another possible State-reference Member State must submit an application for
determination of the respective Member State of reference, pursuant to the Regulation
of Enforcement (EU) No 448/2013 of the Commission of May 15, 2013.
4-A CMVM decides jointly with the competent authorities of the States-
Members involved by virtue of the previous number, within one month of the
receiving the application for authorisation, which the Member State of reference, according to
the procedure laid down in the Implementing Regulation (EU) No 448/2013, of the
Commission, of May 15, 2013.
5-Case Portugal is the reference Member State determined in the terms of the number
previous, CMVM immediately informs the third country managing entity.
6-Should the third country managing body not be properly informed, within the period of
seven days from the making of the decision by the competent authorities or, in the absence
of a decision within one month of the submission of the application for authorization, of the
decision taken, may such a managing entity choose Portugal as a Member State of
reference, without prejudice to the provisions of Article 1 (15) of the Regulation of
Implementation (EU) No 448/2013 of the Commission of May 15, 2013.
7-A third country managing body should be able to prove its intention to effectively
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engage in marketing activities in Portugal through the disclosure of your
marketing strategy to CMVM.
Article 97.
Applicable regime
1-A third country managing body who intends to obtain the prior permission to which
refer to paragraphs 1 and 2 of the preceding Article shall comply with all provisions of the present
General Regime relating to cross-border marketing, in the European Union, of
alternative investment bodies of the European Union by managing entities of the
European Union.
2-Should such compliance be inconsistent with compliance with the legislation to which it is
subject to the third country managing entity or the alternative investment body of
third country marketed in the European Union, the third country managing entity is not
obliged to comply with the provisions of this General Regime if it can prove that:
a) It is impossible to compatibilize the fulfillment of the present General Regime with the
compliance with an imperative provision of the legislation to which the entity gestures
of third country or the alternative country investment body third country
commercialized in the European Union are subject;
b) The third country managing entity or the alternative investment body of
third country are subject to legislation that provides for an equivalent standard with the
same regulatory goal, which offers the same level of protection to the
investors of the alternative investment body of third country; and
c) The third country managing entity or the alternative investment body of
third country meet the equivalent standard referred to in the preceding paragraph.
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Article 98.
Procedure of authorisation
1-After receiving the application for permission, the CMVM must assess whether the choice of Portugal
as a Member State of reference, respects the criteria set out in paragraphs 1 and 2 of the
article 96.
2-Without prejudice to the provisions of Article 96 (96) (96), the CMVM:
a) Refusal of the application for permission of the third country managing entity, in case of
failure to meet the criteria set out in Article 96 (1) and (2), indicating the
respects reasons;
b) Admits the application for permission, in the event of compliance with the said criteria and
notifies:
i) The European Securities and Markets Authority, requesting
that this gives advice on the assessment effectuated; and
ii) The Bank of Portugal, requesting to appear on the fulfilment of the requirements
applicable prudential, which is to pronounce no later than two months.
3-In its notification to the European Securities Authority the CMVM shall
include the justification given by the third country managing body for its assessment
relating to Portugal, as well as information on the marketing strategy of the
third country gestures entity.
4-In its notification to the Bank of Portugal, CMVM refers all the elements
received from the third country managing entity.
5-A CMVM authorisation decision depends on favourable opinion of the Bank of Portugal
provided for in sub-paragraph ii ) of the paragraph b ) of paragraph 2.
6-If the CMVM intends to grant permission contrary to the opinion of the Authority
European Securities and Markets referred to in sub-paragraph i) of the paragraph b ) from the
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n. 2, the CMVM shall, with an indication of its reasons, inform:
a) The said European Authority of that fact;
b) The Bank of Portugal; and
c) In case the third country managing body intends to commercialize units of
participation of alternative investment bodies per se managed in others
Member States, the competent authorities of these and, if applicable, the
competent authorities of the Member States of origin of the bodies of
alternative investment managed by the third country managing entity concerned.
7-Should the CMVM be informed, by another competent authority, of the intention of this of,
contrary to the opinion of the European Securities Authority and the
Markets, grant a permit to a third country managing entity for
develop their activity in the European Union and disagree with the choice of the state-
Member of reference made by the third country managing body, may submit the
matter to the said Authority, which may make use of the competence conferred on it
by Article 19 of the Regulation (EU) No 1095/2010 of the European Parliament and of the
Council, of November 24, 2010.
Article 99.
Conditions of authorisation
1-Without prejudice to the provisions of the following article, the authorisation of the CMVM may only be
granted if the following conditions are met:
a) Portugal to have been chosen as a Member State of reference according to
the criteria set out in Article 96 (1) and (2), reasoned in the
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information about the marketing strategy, and the established procedure
in the previous article has been followed by the CMVM;
b) The third country managing body has appointed an established legal representative
in Portugal;
c) The legal representative, in conjunction with the managing body of the third country:
i) Constitutes the point of contact of the third country managing entity in the Union
European, and all official correspondence between the competent authorities and the
country managing entity third and among the investors of the European Union of the
alternative investment body concerned and the country manager entity
third;
ii) Perform the function of verification of compliance with regard to the
management and marketing activities exerted by the country managing entity
third under the present General Regime, and shall have the conditions
required for the performance of this function.
d) Appropriate cooperation mechanisms are planned between the CMVM, the
competent authorities of the Member States of origin of the bodies of
alternative investment from the European Union involved and the authorities of
supervision of the third country where the country manager entity is established
third, in order to ensure at least an efficient exchange of information, which
allow the competent authorities to continue their assignments pursuant to the
Directive No 2011 /61/UE, of the European Parliament and of the Council of June 8
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of 2011;
e) The third country where the third country managing entity is established not to do
part of the list of the Countries and Non-Cooperative Territories of the Action Group
Financial against money laundering and the financing of terrorism;
f) The third country where the third country managing entity is established to have
signed an agreement with Portugal entirely as per the norms of the article
26. of the Fiscal Convention Model on the Throughput and the Heritage of the
OECD and to ensure an effective exchange of information in tax matters,
including possible multilateral tax arrangements;
g) The effective exercise, on the part of CMVM and the Bank of Portugal, of the respects
supervisory competences within the framework of this General Regime, the General Regime
of the Credit Institutions and Financial Societies, approved by the Decree-Law n.
298/92, of December 31 and of the Securities Code, approved by the
Decree-Law No 486/99 of November 13, not be prevented by the provisions
legal, regulatory or administrative of a third country to which the entity
third country manager is subject, nor by limitations of the competence of
supervision and investigation of the supervisory authorities of that third country;
h) The country's managing entity third initial capital expenditures of € 125000
or from € 300000, depending on whether to be heterogeride or self-managed, respectively, and from
own funds in the terms required by Art. 71, with due adaptations.
2-Case the CMVM disagrees with the assessment on the application of the ( a ) a and ) and g ) of the number
previous made by the competent authorities of the Member State of reference, may
submit the matter to the European Securities and Markets Authority, which
may make use of the competence conferred on it by Art. 19 of the
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Regulation (EU) No 1095/2010 of the European Parliament and of the Council, of 24 of
november 2010.
3-Case the competent authority of an alternative investment body of the Union
European fails to comply with the provisions of paragraph 1 (d) on mechanisms for cooperation
within a reasonable time, the CMVM may refer the matter to the European Authority of the
Securities and Markets, which may make use of the competence that is
conferred by Art. 19 of Regulation (EU) No 1095/2010 of the European Parliament
and of the Council, of November 24, 2010.
4-Should a competent authority refuse a request for an exchange of information formulated
under the mechanisms provided for in paragraph 1 (d), the CMVM may submit the
matter to the European Securities Authority, which may make use of the
competence conferred on it by Article 19 of Regulation (EU) No 1095/2010,
of the European Parliament and of the Council of November 24, 2010.
5-It is correspondingly applicable to the provisions of Article 247 should the Bank of Portugal and
the CMVM have clear and demonstrable reasons to disagree with the authorization of a
entity managing third country by the competent authorities of its State-
Member of reference.
Article 100.
Statement of the order
1-The application for permission of third country managing entity is instructed with the
following elements:
a) Information about the people who effectively drive the activities of the entity
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gestures;
b) Information about the identity of the shareholders who hold, direct or
indirectly, qualifying stakes, whether they are natural or collective persons,
as well as the number of holdings held and the share of capital and
corresponding voting rights;
c) A program of activities that establishes the organizational structure of the entity
gestures, including description of human, technical, material and computer media
to affect the exercise of activity and information on how it intends to
to comply with the obligations that they impose on the strength of this General Regime;
d) Information on the policies and practices of remuneration;
e) Information on the foreseen mechanisms for the subcontracting of functions;
f) A justification on the part of the third country managing body of its assessment
relating to the Member State of reference in accordance with the established criteria
in Article 96 (1) and (2) with information on the strategy of
marketing;
g) A list of the provisions of the present General Regime, the fulfilment of which
third country gestures entity is impossible by such compliance to be, in the
terms of Article 97 (2), incompatible with the fulfilment of provisions
imperatives of the legislation to which it is subject to third country managing entity or the
alternative country investment body of third country marketed in the Union
European;
h) A written substantiation, reasoned in the technical standards of regulation
developed by the European Securities Authority, of which the
legislation of the third country concerned provides for a standard equivalent to the provisions
whose fulfillment is impossible, with the same regulatory goal and that offers
same level of protection for investors from the investment bodies
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alternative in question, and that the third country managing entity complies with the said
equivalent standard; this written voucher must be sustained by an opinion
legal on the existence of the incompatible imperative provision in question in the
third country legislation and include a description of the regulatory goal and the
nature of the protection of investors by it vised;
i) The identification and the place where the legal representative of the entity is established
third country manager;
j) The information referred to in Article 70 (1) may be limited to the
alternative investment bodies of the European Union that the entity gestures
of the third country intends to manage and the alternative investment bodies that the
third country managing entity manages and intends to commercialise in the European Union
with a passport.
2-When the authorisation procedure is applicable the provisions of Article 20 (6) and paragraph 2
of Article 70.
3-Case the CMVM disagrees with the authorisation granted by the competent authorities of the
Member state of reference of the third country managing entity, may submit the
matter to the European Securities and Markets Authority, which can do
use of the competence conferred on it by Article 19 of the Regulation (EU)
n ° 1095/2010 of the European Parliament and of the Council of November 24, 2010.
Article 101.
Decision for authorization
1-A decision of the CMVM is notified to the applicants within three months, to be counted from the
date of receiving the application for authorization of the third country managing entity
completely instructed.
2-The time limit referred to in the preceding paragraph suspends:
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a) For the purposes of the opinions of the European Securities Authority and the
Markets provided for in sub-paragraph i) of the paragraph b ) of Article 98 (2) and in paragraph 1 of the
article 104;
b) By effect of the notification referred to in paragraph 2 of the following article and for the period therein
predicted.
3-In the absence of a decision of the CMVM within the time limit set out in paragraph 1, the authorisation
considers itself to be undue.
Article 102.
Refusal of authorization
1-A CMVM refuses permission of third country managing entity in the situations
provided for in points a ) and b ) of paragraph 1 and Article 22 (2), the point being that the b ) from the
Paragraph 1 of Article 22 shall be without prejudice to the provisions of paragraph 22 b ) of Article 97 (2).
2-Havening grounds for refusal in the terms provided for in the preceding paragraph, the
CMVM, before turning down the application, notifies the applicants, giving them the maximum deadline
of 10 days to suppress the insufficiency, when appropriate, and to address
as to the appreciation of the CMVM.
Article 103.
Expiry, resignation and revocation
1-A The authorization of third country managing entity shall lapse if the latter does not use it on the deadline
of 12 months or have ceased for at least six months, your activity.
2-A The third country managing body may expressly waive the authorization.
3-A CMVM may revoke the authorization of the third country managing entity when:
a) In the event of a serious or systematic violation of the provisions of this Regime
General or other applicable legislation;
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b) Authorisation has been obtained with recourse to false statements or any
another irregular medium;
c) The third country managing body shall fail to bring together the conditions for granting the
authorization.
Article 104.
Procedure for the dispensation of compliance with certain standards
1-Should the CMVM consider that the third country managing body may, on grounds of
in the provisions of Article 97 (2), be waived from compliance with certain
provisions of the present General Regime, must notify the European Authority of the
Securities and Markets from that fact without undue delay, substantiating
this assessment with the information provided by the third country managing entity in the
terms of the points g ) and h ) of Article 100 (1) in order to obtain its opinion concerning the
dispensation with the fulfillment of certain provisions of the present General Regime.
2-If the CMVM intends to grant permission contrary to the opinion of the Authority
European Securities and Markets referred to in the preceding paragraph, the
CMVM must, substantiating, inform:
a) The European Securities and Markets Authority of that fact;
b) The competent authorities of the Member States should the country manager entity
third intends to commercialize units of participation bodies of
alternative investment by you managed in those Member States.
3-Case the CMVM disagrees with the assessment made on the implementation of the Directive of Directive n.
2011 /61/UE, of the European Parliament and of the Council of June 8, 2011,
transposed in this article by the competent authorities of the Member State of
reference of the third country managing entity, may submit the matter to the Authority
European Securities and Markets, which can make use of competence
which is conferred on it by Article 19 of the Regulation (EU) No 1095/2010 of Parliament
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European and the Council of November 24, 2010.
Article 105.
Subsequent amendments to the authorisation
To the changes of the initial conditions of authorization of third country managing entity is
applicable the provisions of Articles 25 and 26, with due adaptations.
Article 106.
Sharing of information concerning the decision
1-A CMVM informs the European Securities and Markets Authority, of
immediate, from the completion of the initial authorization process, of any changes
eventually introduced in the authorization of the third country managing entity and the
revocation of authorization.
2-A CMVM informs the European Securities and Markets Authority of the
requests for permission that it indefates, providing elements on the managing entity of
third country that required the authorization and the grounds for the dismissals.
3-A CMVM may request the European Securities and Markets Authority
information regarding decisions to dismiss orders for authorization from
managing entities of third countries taken by competent authorities of others
Member States, and shall treat such information as confidential.
Article 107.
Change in marketing strategy
1-A The evolution of the activities of the third country managing entity in the Union authorized in
Portugal does not affect the choice of Portugal as a Member State of reference.
2-Notwithstanding the provisions of the preceding paragraph, if the managing entity of third country
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change your marketing strategy within two years of the authorisation
initial and this amendment determines the choice of another Member State of reference, the
managing entity must notify the CMVM of the amendment before implementing it, indicating,
on the basis of the new marketing strategy and in accordance with the expected criteria
in Article 96 (2), the new Member State of reference.
3-In the notification referred to in the preceding paragraph, the third country managing body shall:
a) It justifies its assessment, informing about the new marketing strategy;
b) Provides information on the new legal representative, notably its
identification and where it is established owing the Member State of
establishment to correspond with the new Member State of reference.
4-A CMVM shall assess whether the indication by the third country managing entity in the terms
of paragraph 2 is correct and notify the European Securities Authority and the
Markets of that your assessment, asking for the opinion of this on the assessment.
5-In its notification to the European Securities Authority the CMVM shall
include the justification given by the third country managing body for its assessment
on the new Member State of reference as well as information on the new
marketing strategy of the third country managing entity.
6-After receiving the opinion given by the European Securities Authority and the
Markets referred to in paragraph 4, the CMVM notifies its decision:
a) To the managing entity of third country,
b) To the respective initial legal representative;
c) To the European Securities and Markets Authority; and
d) To the competent authorities of the new Member State of reference, in case the CMVM
agree to the assessment made by the European Securities Authority and
of the Markets.
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7-A CMVM transfers, immediately, a copy of the authorization process and supervision of the
country managing body third party for the new reference Member State, ceasing, the
from the date of transmission of the authorization process and supervision, to its
competence for authorization and supervision of the third country managing entity.
8-If the final assessment of the CMVM is contrary to the opinion of the European Authority of the
Securities and Markets referred to in paragraph 4, the CMVM shall, founded on,
inform:
a) The European Securities and Markets Authority of that fact and, case
this Authority decides to publish the reasons given by the CMVM, indicate whether it is
interested in being previously informed of that publication;
b) The competent authorities of the other Member States where they are
commercialized units of participation of alternative investment bodies
managed by the managing entity of third country;
c) If applicable, the competent authorities of the Member States of origin of the
alternative investment bodies managed by the country manager entity
third.
Article 108.
Concrete evolution of activities and change in marketing strategy
1-A CMVM must demand that the third country's managing body authorised in Portugal
indicate the Member State of reference on the basis of the marketing strategy
effectively followed, when in the two years following your authorization:
a) The concrete evolution of the commercial activities of the managing entity indict that the
marketing strategy by you presented at the date of the authorisation was not
followed;
b) The managing body has provided false statements about the said strategy of
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marketing; or
c) The managing body has failed to comply with the provisions of paragraphs 2 and 3 of the preceding Article
upon the change in its marketing strategy.
2-A permission granted is revoked, in case the third country managing entity does not
comply with the application formulated by the CMVM.
3-If the third country manager entity changes its marketing strategy after the
period referred to in paragraph 1 and intend to amend its Member State of reference with
basis in its new marketing strategy, may require the CMVM to change the
its Member State of reference.
4-For the purposes of the provisions of paragraph 1 and the preceding paragraph shall apply, with the necessary
adaptations, the procedure provided for in paragraphs 2 a to 8 of the preceding Article.
5-Case the CMVM disagrees with the assessment made on the choice of the Member State of
reference in the terms of the previous article or the present, may submit the matter to
European Securities and Markets Authority, which can make use of the
competence conferred on it by Art. 19 of Regulation (EU) No 1095/2010
of the European Parliament and of the Council of November 24, 2010.
Article 109.
Disputes of the authorised third country managing entity in Portugal
1-The disputes between the CMVM and the authorised third country managing body in Portugal
become subject to the legislation and jurisdiction of Portugal.
2-The disputes between the authorised third country manager entity in Portugal and the
investors in Portugal in the alternative investment body concerned stay
subject to the legislation and jurisdiction of Portugal.
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SECTION VI
Activity in the European Union of managing entities established in Portugal and of
third-party managing entities authorized in Portugal
Article 110.
Right to exercise activity in another Member State
1-The holding companies of investment funds may exercise in another
Member state the activities concerning collective investment bodies in
securities covered by the respect of the authorization, upon the establishment of
a branch office or under the freedom to provide services for as long as they have complied with the
notification requirements provided for in the General Regime of Credit Institutions and
Financial Societies, approved by the Decree-Law No. 298/92 of December 31.
2-The managing companies of furniture investment funds and the managing companies of
real estate investment funds may exercise in another Member State the activities
relating to alternative investment bodies, directed exclusively at
qualified investors, covered by the respective authorisation, by the
establishment of a branch office, or under the freedom to provide services
provided that the notification requirements provided for in the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92,
of December 31.
3-Case a holding company of investment funds furnished in
Portugal to propose, without the establishment of branch, only to commercialize a
collective investment body in securities per se managed in another state
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-Member other than the one in which the collective investment body in values
securities is established, without proposing to exercise other activities or to provide
other services, such marketing shall be only subject to the requirements set out in the
subsection II of section III of Chapter II of Title III.
Article 111.
Right of establishment and freedom to provide services of entities
gestures from authorised third countries in Portugal
1-The managing entities of authorised third countries in Portugal can manage
alternative investment bodies, addressed exclusively to investors
qualified, established in another Member State, either directly or through the
establishment of branches, as long as they are authorised to manage such a
alternative investment body.
2-A third country managing entity provided for in the preceding paragraph which it intends to, by
first time, managing alternative investment bodies established in another
Member State, shall report to the Bank of Portugal and to the CMVM as follows
information:
a) The Member States in which it is proposed to directly manage bodies of
alternative investment or establish branches;
b) A program of activities that specifically indicates the services it intends
provide and that identify the alternative investment bodies that are proposed
manage.
3-In case the third country managing body intends to establish a branch, it shall
communicate, in addition to the information provided for in paragraph 2, the following information:
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a) Organisational structure of the branch;
b) Address in the State-Member State of origin of the alternative investment body
together from which documentation can be obtained;
c) Identity and contact elements of the persons responsible for the management of the
branch.
4-A CMVM sends the complete documentation to the competent authorities of the States-
Host members of the third country managing body, within one month of
count of your prescription pursuant to paragraph 2 or within two months of your
Revenue pursuant to paragraph 3, after opinion favourable from the Bank of Portugal that if
pronounces within 20 days.
5-The sending referred to in the preceding paragraph only takes place if the Bank of Portugal and the
CMVM to consider that the management of the alternative investment body by the
entity gestures fulfils, and will continue to comply with, the provisions of this General Regime and
if in all other aspets the managing body shall also comply with the provisions of the
present General Regime.
6-A CMVM includes a declaration certifying that the managing entity in question
is authorized.
7-A CMVM immediately notifies the sending entity of the sending, and this may begin to
to provide its services in the host Member States as of the date of that
notification.
8-A CMVM also informs the European Securities Authority and the
Markets that the managing entity can start to manage the bodies of
collective investment in the host Member States.
Article 112.
Changes of the elements communicated
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1-The managing entities notify the CMVM in writing of any change to the elements
communicated in accordance with paragraph 2 or paragraph 3 of the preceding Article, as applicable:
a) With at least one month in advance in relation to the date of respect
production of effects, in the case of planned changes; or
b) Immediately, in the case of unforeseen changes.
2-Received the communication provided for in paragraph (a) of the preceding paragraph and by checking that the
foreseen changes imply a management of the alternative investment body in
violation of the provisions of this General Regime, or that the managing body does not comply with the
disposed of the same, the CMVM shall, in good time, notify the managing entities of
that the planned changes may not be adopted.
3-A CMVM shall take the measures that are adherents to the situation in question, including, if
necessary, the express prohibition of the marketing of the units of participation of the
alternative investment body, when:
a) The managing body adopts the planned amendments in violation of the terms of the
notification made by the CMVM;
b) Unforeseen changes occur with the consequences referred to in paragraph 2; or
c) Please check that the managing body does not comply with the provisions of this Regime
General.
4-A CMVM shall immediately inform the competent authorities of the Member States of
hosting of the managing body of the changes in respect of which it does not object.
Article 113.
Collaboration in the supervision of authorised entities in Portugal
1-When, in the context of an application for the constitution of an investment body
collective in securities in another Member State, or of a management authorization of
collective investment body in already constituted securities, the authority
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competent State Member State of origin of the collective investment body in
securities to request clarifications on the statement of the order or information
additional on the scope of the authorisation or registration granted to the managing company
of furnishing investment funds, CMVM transmits the requested clarifications
within a period of 10 days from the date of receiving the application.
2-When, in the framework of the supervision of cross-border activity of managing entity
provided for in Article 65 (1) or of the third country managing body, authorised in
Portugal, the competent authority of the host Member State to inform about the
refusal to provide for information required or on the continued non-compliance of
standards applicable on the part of the managing body, the CMVM, with the greatest brevity
possible:
a) Takes the necessary steps to ensure that the managing body pays the
information requested by the competent authority of the Member State of
hosting or putting an end to non-compliance;
b) Treating itself as a third country managing entity, it requires the information
necessary to the competent supervisory authority of third country.
3-The measures taken pursuant to paragraph (a) of the preceding paragraph shall be
communicated to the competent authority of the host Member State.
4-Before revoking the authorisation or cancelling the registration of the managing entity of a
collective investment body in securities authorized in another state-
Member, the Bank of Portugal and the CMVM, depending on the skills in question,
consult with the competent authorities of the Member States of origin of the body
of collective investment in securities.
5-A CMVM, after prior information to the Bank of Portugal, notifies, immediately, the
competent authorities of the State-Member State of the investment body
collective in securities of any issues lofted at the entity level
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gestures, which could affect in material terms the ability of this to play
correctly its functions relating to the collective investment body in
securities, or the non-compliance of any of the requirements set out in the
chapter I of Title II.
SECTION VII
Activity in Portugal of authorized managing entities in other states-
Members
Article 114.
Right of establishment and freedom to provide services
1-The managing entities of collective investment bodies in securities
authorized in other Member States and subject to supervision of the respective authorities
may, received the notification provided for in Article 199 (4) of the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92,
of December 31, exercise in Portugal the activities covered by the respect
authorization, upon the establishment of a branch office, or under the freedom of
provision of services.
2-The managing entities referred to in the preceding paragraph may still commercialize in
Portugal the units of participation of a collective investment body in
securities authorized in another Member State per se managed, after receiving the
notification referred to in the preceding paragraph.
3-The managing entities of the European Union and the managing entities of the third country
authorized in other Member States may, received the notification provided for in this
article or in the General Regime of Credit Institutions and Financial Societies,
approved by Decree-Law No 298/92 of December 31, where applicable, exercise
in Portugal activities relating to alternative investment bodies covered
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for their respective authorization, provided that they are directed exclusively to investors
qualified, upon the establishment of a branch or under the freedom of
provision of services.
4-It is a condition of exercise in Portugal of the activities foreseen in the preceding paragraph that the
CMVM receives from the competent authority of the Member State of origin of the entity
manager of the European Union or of the reference Member State of the managing entity of
country third a notification containing the elements provided for in Article 111 (2).
5-Whether the managing entity of the European Union or the third country managing entity
authorized in another Member State to claim to establish a branch office in Portugal to
notification referred to in the preceding paragraph shall contain still the elements provided for in the n.
3 of Article 111.
Article 115.
Law applicable to the constitution and operation of investment body
collective
The managing entities of the European Union and the managing entities of third country
authorized in other Member States they ensure, in respect of bodies of
collective investments established in Portugal by you managed, compliance with the
provisions of the present General Regime relating to the constitution and operation and of the
obligations set out in the constitutive documents, defining all the rules and
organisational arrangements necessary for such compliance.
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Article 116.
Statement of the request for management of collective investment body in values
securities in Portugal
1-The application for management of collective investment body in securities
established in Portugal by managing entities established in another State-
Member is presented with the CMVM and instructed with the following documentation:
a) Contract with the depositary;
b) Contracts with subcontracted entities concerning the management functions and
administration of investments.
2-If the managing entities already manage collective investment body in values
securities in Portugal, it is sufficient the reference to the documentation presented
previously.
3-To ensure compliance with the standards under its responsibility, the CMVM may
request to the competent authorities of the Member State of origin of the managing body
clarifications and information relating to the documentation referred to in paragraph 1 and on the
scope of the authorization granted to the managing body, based on the certificate received
of the competent authority of the Member State of origin under the terms of the ( a ) from the
Article 49 (1) or Article 61 (1) applicable by virtue of Article 61 (4) of the article
199.-L all of the General Regime of Credit Institutions and Financial Societies,
approved by Decree-Law No. 298/92 of December 31.
4-Any relevant changes subsequent to the documentation referred to in paragraph 1 are
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notified by the managing company to the CMVM.
Article 117.
Refusal of request for management of collective investment body in values
securities in Portugal
1-A CMVM may only refuse the request of the managing entity if this:
a) Do not comply with the applicable rules;
b) Shall not be authorised by the competent authorities of your Member State
of origin to manage collective investment body in securities of the
type of that for which it intends to permit; or
c) Do not submit the documentation referred to in paragraph 1 of the previous article.
2-Before turning down the application, CMVM consults the Bank of Portugal and the authorities
competent from the Member State of origin of the managing entity.
3-Are communicated to the European Commission the number and the nature of cases of refusal to
requests pursuant to this article.
4-To the decision provided for in paragraph 1, the provisions of Article 21 shall apply, with the necessary
adaptations.
Article 118.
Information for statistical purposes
The authorized holding companies in another Member State that exercise activity in
Portugal through branches are subject to the periodical reporting of information on the
management of collective investment bodies in transferable securities to the CMVM, for purposes
statistic, in the terms to be defined in regulation of the CMVM.
SECTION VIII
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Activity in Portugal with connection to third countries
Article 119.
Management of alternative investment bodies from third countries not
marketed in the European Union
The managing societies provided for in Article 65 (1) and the managing entities of the Union
European can manage alternative investment bodies from third countries, directed
exclusively to qualified investors, who are not marketed in Portugal or
in another Member State, provided that:
a) Comply with all the requirements set out in the present General Regime, except the
of Articles 120 to 128, 160, 163, 163 and Article 164 (1), in what if
refers to such alternative investment bodies; and
b) Appropriate cooperation mechanisms have been agreed between the CMVM and the
supervisory authorities of the third country where the body is established
alternative investment in cause, in order to ensure at least one exchange of
efficient information that enables the CMVM to exercise its competences of
agreement with the provisions of this General Regime.
CHAPTER II
Depositories
SECTION I
General provisions
Article 120.
Depositary
1-The assets constituting the portfolio of the collective investment body are
entrusted to a single depositary.
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2-Can be custodians:
a) The credit institutions referred to in points a ) a d ) of Article 3 of the General Regime
of the Credit Institutions and Financial Societies, approved by the Decree-Law
n ° 298/92 of December 31, which have own funds of not less than
€ 7500000;
b) The investment firms authorized to provide the registration and deposit service
of financial instruments on account of customers and which are subject to requirements
of own funds pursuant to Art. 92 of Regulation (EU) No 575/2013
of the European Parliament and of the Council of June 26, including the requirements of
own funds for operational risk in the terms set out in the paragraph and ) of paragraph 3 of the
even article of that Regulation.
3-The depositary must be established in Portugal.
4-A provision of depository service to entities outside the perimeter of
consolidation in which it is integrated the depositary is ensured under economic conditions
non-discriminatory.
5-A CMVM may request the statement of reasons for refusal to provide the depositary service
to entities referred to in the preceding paragraph.
6-Mediant application, the depositary shall provide to the Bank of Portugal or CMVM all
the information you have obtained in the performance of your duties and which are necessary
for the supervision of the collective investment body.
7-The depositary may subscribe to units of participation of the bodies of
collective investment with respect to which it exercises the functions of depositary.
Article 121.
Duties of the depositary
1-The depositary shall be subject, inter alia, to the following duties:
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a) Comply with the law, the regulations, the constitutive documents of the bodies of
collective investment and the contract concluded with the entity responsible for the
management, in particular with regard to the acquisition, disposal, subscription,
rescue, reimbursement and the extinction of units of participation of the body of
collective investment;
b) Store the assets, with the exception of cash, of the investment body
collective, in the following terms:
i) In respect of financial instruments that can be received in
deposit or enrolled in registration:
1º) The depositary guards all financial instruments that may be
registered in an account of open financial instruments in their
books and all financial instruments that can be physically
delivered to the depositary;
2º) For this purpose, the depositary shall ensure that all the
financial instruments that can be registered in a account of
open financial instruments in your books are registered in these
books in separate accounts, pursuant to Article 306 (5 a) (306) of the
Code of Securities, approved by the Decree-Law
n. 486/99 of November 13 on behalf of the body of
collective investment or the entity responsible for the management acting
in the name of this, so that they can at all time be clearly
identified as belonging to the investment body
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collective, in the terms of the applicable law.
ii) With respect to the remaining assets:
1º) Checking that the collective investment body is holder of rights over
such assets and record the assets in respect of which such entitlement arises
proven, and the verification shall be carried out on the basis of the information or
documents provided by the entity responsible for the management and, if they are
available, on the basis of external evidence;
2º) Maintain an updated record of them;
c) Carry out the instructions of the entity responsible for the management, save if they are
contrary to applicable legislation and constitutive documents;
d) Ensure that, in the operations relating to the assets of the investment body
collective, the counterpart is delivered on the deadlines in accordance with the practice of
market;
e) Promote the payment to the participants of the income of the units of
participation and value of the respect ransom, refund or product of the settlement;
f) Elaborate and maintain updated the chronological relationship of all carried out operations
on account of the collective investment body;
g) To draw up monthly the discriminated inventory of the assets and liabilities of the
collective investment body;
h) Scrutinize and guarantee before participants compliance with the legislation
applicable and the constitutive documents of the collective investment body,
particularly with regard to:
i) To the policy of investments, particularly with regard to the application of
income;
ii) To the politics of distribution of income;
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iii) To the calculation of the value, the issuance, the rescue, reimbursement, disposal and extinction of
registration of the units of participation;
iv) To the matter of conflict of interest;
i) Submit annually to the CMVM a report on the surveillance developed, in the
terms to define in CMVM regulation and immediately inform the CMVM
of detached defaults that may harm the participants;
j) Immediately inform the entity responsible for the management of the change of the
members of its board of directors, and that entity shall notify
immediately the CMVM on the said amendment.
2-The depositary shall still ensure the appropriate monitoring of cash flows
of the collective investment body, in particular:
a) From the receiving of all payments effected by the participants or on behalf
of these at the time of subscribing to units of participation;
b) From the correct record of any cash from the collective investment body
on open accounts on behalf of the collective investment body or the
entity responsible for the management acting on behalf of this, in a central bank,
at a credit institution of the European Union or in an authorised bank in a
third country or other entity of the same nature in the relevant market where
cash accounts are required, provided that such an entity is subject to
effective regulation and prudential supervision that have the same effect as
legislation of the Union and are effectively applied, pursuant to paragraphs 5 a to 7 of the
article 306 of the Securities Code, approved by the Decree-Law
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n. 486/99, of November 13.
Article 122.
Liability of the depositary
1-The depository of collective investment body established in Portugal is
responsible, in the general terms, before the entity responsible for the management and the
participants:
a) For the loss, by you or per third subcontractor, of financial instruments
entrusted to your guard;
b) For any injury suffered by the participants as a result of the default
doloso or by negligence of their obligations.
2-In the event of loss of a financial instrument entrusted to its guard, the depositary
must in good time give back to the entity responsible for the management an instrument
financial of the same type or the corresponding amount.
3-The depositary is not responsible for the loss if it proves that the same occurred due to
external events that are outside of their reasonable control and whose
consequences could not have been avoided in spite of all reasonable efforts.
4-The depositary is accountable to the participants, in a direct or indirect way, through
of the entity responsible for the management, depending on the legal nature of the relationship between the
depositary, the entity responsible for the management and the participants.
5-Without prejudice to the provisions of the following number, the depositary shall be liable
regardless of, by agreement of the entity responsible for the management and upon
contract written, subcontract to a third party guard or of the entirety of the
financial instruments.
6-In the event of loss of financial instruments entrusted to the guard of a third party in the
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Terms of Article 124, the depositary may exonerate itself of its civil liability if
prove that:
a) All requirements for the subcontracting of guard duties have been met
set out in Article 124 (2);
b) A written contract was concluded between the depositary and the third party which transfers
expressly the liability of the depositary for the third party and allows the
entity responsible for the management or the depositary in the name of this responsibility to
identical form the third with respect to the loss of the financial instruments;
c) A written contract has been concluded between the depositary and the entity responsible for the
management that expressly provides for the possibility of the depositary exonerating itself from its
liability and stipulates the objective reason of the hiring of such exoneration.
7-In case the legislation of a third country requires certain financial instruments to be
entrusted to the guard of a local entity and there are no local entities that comply
the subcontracting requirements set out in point (ii) of paragraph 2 (d) of the
article 124, the depositary may exonerate itself of its responsibility in the following
conditions:
a) The constitutive documents of the collective investment body concerned
expressly permit such exoneration under the conditions set out in the present
number;
b) The participants of the collective investment body concerned have been
duly informed of the exoneration and the circumstances that justify it before
of the investment;
c) The entity responsible for the management has committed the depositary of subcontracting the
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guard of the financial instruments concerned in a local entity;
d) A written contract has been concluded between the depositary and the entity
responsible for the management that expressly permits exoneration; and
e) A written contract has been concluded between the depositary and the third party which
transfers expressly the responsibility of the depositary to the local entity in
cause and allow the entity responsible for the management or the depositary in the name
of this responsibility identically to the local entity with respect to the loss of the
financial instruments.
Article 123.
Independence
1-To avoid conflicts of interest between the depositary, the entity responsible for the management
and the collective investment body or the participating respects:
a) The entities responsible for the management may not be depositary of the bodies
of collective investment under management;
b) The main broker that attests as a counterparty to an investment body
collective cannot be a depository of the same collective investment body,
save if you have functional and hierarchically separate the performance of your
depository functions of your main dealer functions and that the potentials
conflicts of interest are properly identified, managed, accompanied and
disclosed to the participants of the collective investment body;
c) The master dealer can only be subcontracted to the guard duties if
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the applicable conditions laid down in Article 124 are fulfilled.
2-The depositary, in the exercise of the duties, acts with honesty, fairness,
professionalism, independence and in the exclusive interest of the participants.
3-The depositary may not engage in activities relating to the investment body
collective or the entity responsible for the management that can create conflicts of interest
among the participants, the entity responsible for the management and the depositary itself, save
whether it has separated functional and hierarchically the performance of its functions of
depositary of other potentially conflicting functions and that potential conflicts
of interests are properly identified, managed, accompanied and disclosed to the
participants from the collective investment body.
Article 124.
Subcontracting of the function of the asset guard
1-The depositary may not subcontract in third parties its duties, with the exception of
asset guard function.
2-A subcontracting by the depositary of the asset guard function depends on the
compliance with the following conditions:
a) The functions are not subcontracted with the aim of avoiding compliance with the
requirements of this General Regime;
b) The depositary demonstrates that there are objective reasons justifying the
subcontracting;
c) The depositary has used the necessary competence, zeal and diligence in the selection and
hiring of the third parties on whom it wants to subcontract the guard duties of
assets and continue to use that competence, zeal and diligence in the periodic review and
in the continuous monitoring of the activities developed by the subcontractors and
of the mechanisms by these adopted in relation to the subcontracted functions; and
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d) The depositary shall ensure that the subcontractor, in the performance of his duties,
meets at all time the following conditions:
i) Have the appropriate and proportionate structures and knowledge provided to
nature and the complexity of the assets of the collective investment body
that have been entrusted to you;
ii) With respect to the guard of financial instruments, be subject to
prudential regulation, including minimum requirements of own funds,
and effective supervision in the jurisdiction concerned and be subject to audits
periodical external actions aimed at ensuring that financial instruments
continue in your possession;
iii) Have segregated the assets of the customers of the depositary of their own
assets and assets of the depositary so that such assets can, in any
moment, be clearly identified as being of the entitlement of the
customers of a given depositary;
iv) Only reuse the assets in the case of alternative investment bodies
exclusively addressed to qualified or closed investors who do not
are constituted upon public offer and provided that:
1º) The responsible entity has given its prior consent;
2º) The depositary has been notified in advance; and
3º) Such a possibility shall be provided for in the constitutive documents.
v) Comply with the general obligations and the prohibitions laid down in the b ) of paragraph 1 of the
article 121 and in paragraphs 2 and 3 of the preceding Article.
e) The possibility of subcontracting is expressly provided for in the contract with the
depositary in accordance with Article 128 (6).
3-Notwithstanding the provisions of sub-paragraph ii ) of the paragraph d ) of the previous number, case a
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legislation from a third country requires certain financial instruments to be entrusted
at the guard of a local entity and there is no entity that complies with the requirements
of subcontracting established in that sub-paragraph, the depositary may subcontract the
its functions to that local entity, although solely to the extent that the legislation of the
third country the exter and while there are no local entities meeting the requirements
of subcontracting, under the following conditions:
a) The participants of the collective investment body concerned have been
properly informed, prior to investment, that subcontracting is
necessary by virtue of legal restrictions arising from the law of the third country, of the
circumstances that justify the subcontracting and the risks that it entails; and
b) The entity responsible for the management has in charge of the subcontract depository
the guard of the financial instruments to the local entity concerned.
4-The third subcontractor may, in turn, subcontract the subcontracted functions
by the depositary, under the same conditions, by applying, in that case, to the relevant parties,
with the necessary adaptations, the provisions of Article 122 (5) and (6).
5-For the purposes of this article, it is not considered to be subcontracting of guard duties
the provision of settlement services by securities settlement systems
or of services equated in the case of provision by entities of third countries.
Article 125.
Replacement of the depositary
1-The constitutive documents of the collective investment body define the rules
applicable to the replacement of the depositary, which shall ensure the protection of the
participants.
2-A The replacement of the depositary depends on authorization from the CMVM.
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3-A The decision is notified within 15 days of the receiving of the application
fully instructed, and becomes effective on the date of notification of decision of
dewound or at a later date indicated by the applicant.
4-If the application is instructed in an insufficient form, the CMVM, before refusing the application,
notifies the applicant giving you the maximum period of 10 days to supply the insufficiency and
to pronounce itself as to the appreciation of the CMVM.
5-The time limit referred to in paragraph 3 shall be suspended by the effect of the notification referred to in the number
previous.
6-In the absence of a decision of the CMVM on the date of expiry of the deadline set out in paragraph 3, the
authorization is deemed to be granted.
7-The application for the replacement of the depositary is instructed with the contract project with the
new depositary and with the amended constitutive documents accordingly,
they shall be disclosed at the time when the replacement becomes effective.
Article 126.
Remuneration
The exercise of the activity of depositary is remunerated through a commission of
deposit.
SECTION II
Contract between the depositary and the entity responsible for the management
Article 127.
Contract with the depositary concerning the collective investment body
established in Portugal
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1-The contract between the collective investment body in a society-shaped form, or the
managing entity, in the case of investment funds, and the depositary is reduced to
written and subject to Portuguese law, and such a fact shall be specified in it.
2-The contract with the depositary may cover more than an investment fund
managed by the same managing entity.
3-In the case referred to in the preceding paragraph, the contract shall include the list of the funds of
investment covered.
Article 128.
Contents of the contract
1-The contract referred to in paragraph 1 of the preceding Article, includes, inter alia, the respect
remuneration and the following elements relating to the services provided:
a) Procedures relating to each type of assets of the investment body
collective entrusted to the depositary, including those related to its guard;
b) Procedures relating to the amendment of the constitutive documents, distinguishing
the situations in which the depositary is to be informed and those requiring its
prior agreement;
c) Means and procedures relating to the transmission to the entity responsible for the
management of the information relevant to the performance of its functions, including
those related to the exercise of all rights associated with instruments
financial, as well as the means and procedures that enable the entity
responsible for the management in timely access to the information on the accounts of the
collective investment body;
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d) Means and procedures relating to access to all relevant information that
the depositary needs for the fulfilment of its obligations;
e) Procedures permitting to inquire about the behaviour of the entity
responsible for the management and to evaluate the quality of the transmitted information,
notably through presential visits;
f) Procedures permitting the entity responsible for the management to analyse the
performance of the depositary with respect to its contractual obligations.
2-When the entity responsible for the management of the collective investment body does not
has registered office or branch in Portugal, the contract with the depositary shall regulate
specifically the flow of information necessary to enable this to exercise the
respect functions in accordance with applicable legislation and documents
constitutive of the collective investment body.
3-In the case referred to in the preceding paragraph, the Parties may include the items relating to
to the means and procedures referred to in the ( c) and d) of paragraph 1 in an autonomous contract.
4-The contract with the depositary shall also include the following items relating to the
exchange of information and duties in respect of confidentiality and bleaching of
capital:
a) A list of all the information that has to be shared between the parties
related to underwriting, ransom or refund and the acquisition, sale and
extinction of the registration of units of participation of the investment body
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collective;
b) The confidentiality duties applicable to the Parties;
c) Information on the duties and responsibilities of the parties to the
prevention of money laundering and the financing of terrorism.
5-The duties referred to in the paragraph b) from the previous number, are established in such a way
do not prejudice the access of the Bank of Portugal, the CMVM or authorities
competent counterparts to the relevant documents and information.
6-If the possibility of subcontracting is provided for, the contract with the depositary shall
still include the following elements:
a) Commitment by both sides to provide a regular basis on a regular basis
data on subcontracted entities;
b) Commitment to, at the request of one of the parties, the other party to provide information
on the criteria used in the choice of subcontractor entities and on the
measures adopted to control the activities carried out by these;
c) Statement by the parties explaining that the responsibility is independent of
be subcontracting.
7-The contract with the depositary shall still regulate the following subjects:
a) Their duration;
b) The conditions under which the contract may be changed or ceased;
c) In case of replacement of depositary, the procedure by which the previous
depositary transmits to the new depositary the relevant information;
d) In cases where the parties accept to use electronic means for transmission
of part or of the totality of the information that exchange with each other, the way it is
kept the record of such information.
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CHAPTER III
Commercializing entities
Article 129.
Commercializing entities
1-Can be marketers of units of participation:
a) The entities responsible for the management;
b) The depositories;
c) The financial intermediaries registered with the CMVM for the financial year
placement activities in public offerings of distribution or fearding and
transmission of orders on account of outrain;
d) Other entities as such provided for in regulation of the CMVM, by
authorization of this.
2-The marketing entities referred to in point (s) d ) of the previous number observe the
rules imposed on financial intermediaries relating to the exercise of their activity,
specifically those for the prevention and resolution of conflicts of interest, by staying the
services responsible for marketing subject to the supervision of CMVM, nos
same terms than those financial intermediaries.
3-Relations between the entity responsible for the management and the marketer entities
are governed by written contract.
4-The marketers respond to the participants for the damage
caused in the exercise of their activity.
5-Can still market units of participation of investment bodies
alternative to employees the employing entities or the entities that if
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find in respect of domain or group with the employing entity, or the
entities with whom those find themselves in domain or group relation, since
that the participation in the alternative investment body is reserved to the
workers from these entities.
Article 130.
Duties of marketizing entities
The marketers are subject to the duty to make available to the investor, in the
terms of the present General Regime or CMVM Regulation, the information that for the
effect have been referred to them by the entity responsible for the management.
CHAPTER IV
Auditors
Article 131.
Auditor
1-A financial information contained in reporting documents relating to
collective investment body is object of audit report drawn up by
auditor registered at the CMVM.
2-The auditor responsible for the issuance of the report referred to in the previous number communicates
immediately to the CMVM the facts and situations relating to the investment body
collective that you take notice in the exercise of your duties and that they are
susceptible to:
a) Constitute infringement of legal or regulatory standards relating to the activity of the
collective investment body;
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b) Affect the continuity of the exercise of the activity of the investment body
collective; or
c) Determine the issuance of a qualified audit report, specifically in the
modalities of "opinion with reservations," "escussion of opinion" or "adverse opinion."
3-Notwithstanding the provisions of paragraph 1, the entities responsible for the management that
market third country alternative investment bodies exclusively
directed to qualified investors in Portugal may submit the information
financial contained in the reporting documents relating to those bodies to
audit as per the international auditing standards in force in the Member State
or in a third country in which the bodies are established.
Article 132.
Plurality and rotativity
1-A-The end of acauteling susceptible situations of generating conflicts of interest among the
auditors and the collective investment bodies, the entity responsible for the management
must ensure the rotation of the auditors, in the terms to be defined in regulation of the
CMVM.
2-The auditor of the collective investment body shall not be an auditor, nor belong to the
network of the auditor, of the parent company in which the entity responsible for the management consolidates the
their accounts.
CHAPTER V
External evaluators
Article 133.
Functions
1-Case has been assigned an external evaluator for the performance of the function of
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valuation of assets, the managing body responsible for the management must demonstrate that:
a) The external evaluator is subject to a recognised compulsory professional registration
by law, to legal or regulatory provisions or standards of professional conduct;
b) The external evaluator can provide sufficient professional guarantees for power
effectively exercise the evaluation function, in the terms defined in regulation of the
CMVM;
c) The designation complies with the requirements laid down in Articles 75 to 80 of the Regulation
Delegate No. 231/2013, of the European Commission, of December 19, 2012 and in the
n Article 76 (1);
d) A written contract has been concluded between the parties fixing the terms in which the evaluator
external exerts its activity.
2-The external evaluator may not subcontract to third parties his or her duties.
3-The external evaluator functions of the collective investment body cannot be
performed by the depositary or the auditor of the same, save if they have
separate, functional and hierarchically, the exercise of the functions of depository or of
auditor of the exercise of the external evaluator functions and the potential conflicts of
interests are properly identified, managed, accompanied and disclosed to the
respects investors.
4-The entities responsible for the management must notify the CMVM of the designation of the
external evaluator, and the CMVM may require the replacement of the evaluator in case of no
verification of the requirements set out in paragraph 1.
5-The external evaluator is accountable to the entity responsible for the management by
any injury by this suffered as a result of the doleful or negligent default
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of his duties.
Title III
From the activity of collective investment bodies
CHAPTER I
General provisions
SECTION I
Management
SUBSECTION I
Global exposure to derivative financial instruments
of the collective investment bodies in securities and the bodies
of alternative investment in securities
Article 134.
Calculation of global exposure to derivative financial instruments
1-A managing body responsible for the management calculates global exposure to financial instruments
derivatives of collective investment bodies in securities and of
alternative investment bodies in securities per se managed, of a
of the following forms:
a) Considering the increased exposure and leveraging generated by the organism of
collective investment through the use of financial instruments
derivatives, including embedded derivative financial instruments; or
b) Considering the market risk of the portfolio of the investment body
collective.
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2-For the purposes of the preceding paragraph, the entity responsible for the management may calculate the
global exposure through an approach based on the commitments, the subject value
the risk ( value-at-risk ) or through other advanced methods of risk assessment,
as appropriate.
3-For the purposes of the preceding paragraph, it is understood by value subject to risk, a measure of the
maximum loss expected, with a certain level of confidence, during a period
specific.
4-A the managing body responsible for the management must ensure that the selected method to measure the
global exposure is suitable, considering the investment strategy followed by the
collective investment body and the types and complexity of instruments
derivatives used, as well as the respect for weight in the body's portfolio
of collective investment.
5-Whenever a collective investment body uses techniques and instruments
to increase leveraging or exposure to market risk, including agreements of
repurchase or grant of securities lending, these transactions must
be considered in the calculation of the global exposure of the collective investment body.
6-A managing body responsible for the management calculates global exposure to financial instruments
derivatives in the forecast periodicity for the disclosure of the value of respect units
of participation.
Article 135.
Approach based on commitments
1-When the approach based on the commitments for the calculation of the exhibition is used
global, the entity responsible for the management should apply this approach to all the
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positions in derivative financial instruments, including financial instruments
embedded derivatives used in both the scope of the investment policy of the
collective investment body, for the purpose of covering risk, as for
realization of investment objectives.
2-When the approach based on the commitments for the calculation of the exhibition is used
global, the entity responsible for the management must convert each position into instruments
financial derivatives at the fair value of an equivalent position in the asset underlying the
derivative financial instrument in question.
3-A the managing body responsible for the management may apply other calculation methods that are
equivalent to the standard approach based on the commitments referred to in the number
previous.
4-A the managing body responsible for the management may consider the mechanisms for compensation and
of risk coverage when calculating the global exposure, provided that such mechanisms do not
ignore obvious and substantial risks and result in a clear reduction of exposure to the
risk.
5-Whenever the use of derivative financial instruments does not generate an exhibition
additional to the collective investment bodies, the underlying exposure does not have
of being included in the calculation of the commitments.
6-When the approach based on commitments is used, the loans of values
Securities contracted on behalf of the collective investment body do not have to be
included in the calculation of global exposure.
Article 136.
Risk of counterparty
1-The risk of counterparty associated with transacted financial instruments
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out of regulated market and multilateral trading system is subject to the
limits set out in Article 176.
2-When calculating the exposure of the collective investment body in securities and
of the alternative investment body in securities to a counterparty of
in accordance with the applicable limits, the entities responsible for the management shall use the
positive market value of the derivative financial instruments contract
transacted out of regulated market and multilateral trading system
concluded with the counterparty.
3-The entities responsible for the management can compensate for the positions in instruments
financial derivatives of a collective investment body with the same
counterparty, on the condition that they can carry out compensation arrangements with the
counterparty on account of the managed collective investment body.
4-A compensation is only allowed in relation to derivative financial instruments
transacted out of regulated market and multilateral trading system
with the same counterparty and not in relation to other exposures that the body of
collective investment may have with the counterparty in question.
5-The entities responsible for the management can reduce the exposure of the body of
collective investment to a counterparty in a transaction in financial instruments
transactional derivatives outside regulated market and trading system
multilateral through the acceptance of sufficiently liquid guarantee to be able to be
sold in a speedy manner at prices similar to its market value.
6-The entities responsible for the management shall take into consideration the guarantees provided
to the counterparty on account of the collective investment body when calculating the
exposure to counterparty risk.
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7-For the purposes of the preceding paragraph, the guarantee provided may be compensated if the entity
responsible for the management is empowered to carry out the compensation agreements with the
counterparty on account of the collective investment body under management.
8-The entities responsible for the management shall calculate the concentration limits of the
issuers on the basis of the underlying exposure resulting from the use of instruments
financial derivatives in accordance with the approach based on the commitments.
9-Regarding the resulting exposure of financial instrument transactions
derivatives outside of regulated market or multilateral trading system, the
calculations should include any exposure to the counterparty risk of these transactions.
Article 137.
Calculation of the value of derivatives financial instruments transacted out of
regulated market and multilateral trading system
1-The entities responsible for the management should check that it is attributed the fair value to the
exhibitions of the collective investment bodies in securities and of
alternative investment bodies in securities to instruments
financial derivatives transacted out of regulated market and system of
multilateral trading.
2-The fair value referred to in the preceding paragraph shall not depend only on prices
indicated by the counterparties of the transactions carried out outside of regulated market and
of multilateral trading system and shall fulfil the criteria referred to in paragraph 3 of the
article 170 para.
3-For the purposes of the provisions of paragraph 1, the entities responsible for the management shall
establish, implement and maintain mechanisms and procedures that ensure a
appropriate, transparent and fair assessment of the exposures of the investment bodies
collective relatively to derivatives financial instruments transacted outside of
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regulated market and multilateral trading system.
4-The entities responsible for the management must ensure that the fair value of the
derivative financial instruments transacted out of regulated market and from
multilateral trading system are subject to a proper, accurate assessment and
independent.
5-The entities responsible for the management shall comply with the requirements set out in the
n Article 308 (1), paragraph 1, and in paragraphs 1 a ) and b ) of Article 308 (3)-B all of the
Code of Securities, approved by the Decree-Law No. 486/99, of 13 of
November, whenever the mechanisms and procedures for evaluating the instruments
financial derivatives transacted out of regulated market and system of
multilateral trading involves the realization of certain activities by third parties.
6-The establishment, implementation and maintenance of the mechanisms and procedures of
evaluation of the exposures of the collective investment bodies relatively to
derivative financial instruments transacted out of regulated market and from
multilateral trading system constitutes a specific competence of the function of
risk management.
7-The mechanisms and procedures for evaluating the exposures of the bodies of
collective investment in respect of transacted financial instruments
out of regulated market and multilateral trading system should be
properly documented.
8-The evaluation mechanisms and procedures shall be appropriate and proportionate to the
nature and the complexity of derivatives financial instruments transacted outside
of regulated market and multilateral trading system in question.
Article 138.
Report on derivative financial instruments
1-A entity responsible for the management sends annually to the CMVM, regarding the
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collective investment bodies in securities and the bodies of
alternative investment in securities per se managed, report with
information that reflects a true and appropriate image of the types of
derivative financial instruments used, of the underlying risks, of the limits
quantitative and the methods chosen to calculate the risks associated with transactions
of derivative financial instruments.
2-The report provided for in the preceding paragraph shall be delivered by April 30 of the year
next to what you respect.
SUBSECÇÂO II
Common provisions relating to management
Article 139.
Charges and revenues
1-Constituent charges of the collective investment body:
a) The management committee and the commission of deposit, intended to remunerate the services
provided by the entity responsible for the management and the depositary of the body of
collective investment, respectively;
b) The costs of transaction or onerous exploitation of the assets of the body of
collective investment, including the costs of mediation;
c) Costs of conservation and maintenance of assets;
d) The costs related to the conclusion of insurance contracts;
e) The emerging costs of audits and external evaluations required by law or
regulation of the CMVM;
f) Other expenses and charges duly documented and which are due to
legal obligations;
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g) The supervision fee due to the CMVM.
2-The costs relating to the mediation and valuation of real estate are only attributable to the
collective investment bodies in respect of business that for this are
concretized.
3-Constituent, inter alia, revenues of collective investment bodies as
resulting from the investment or transaction of the assets that make them up, as well as the
income from these assets, the underwriting, rescue and transfer commissions and the
benefits provided for in Article 92.
4-Notwithstanding the provisions of the preceding paragraph, part or the whole of the committees of
subscription, rescue and transfer can revert to the marketer entity,
provided that this is provided for in the constitutive documents of the body of
collective investment.
5-The remaining rules regarding revenue and charges of the collective investment body
are defined in regulation of the CMVM.
Article 140.
Conditions for underwriting, rescue and transfer
1-Only participants can be charged to the underwriting, rescue and joint committees
of the transfer, in the conditions and according to the calculation methods set in the
constitutive documents.
2-The increase in rescue or transfer commissions or the aggravation of their
conditions can only be applied in relation to the subscribed participation units
after the entry into force of the respective amendments.
Article 141.
Subscriptions to units of participation of a collective investment body
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in another collective investment body
1-Whenever a collective investment body unseen in units of participation
of collective investment bodies managed, directly or by subcontracting, or
marketed by the same entity responsible for management, or by entity that with
that one finds in relation to domain or group, or linked in the framework of a
common management or by direct or indirect capital participation greater than 20%, not
any underwriting or rescue commissions may be charged in the respects
operations.
2-Without prejudice to the limits set out in Article 177, an investment body
collective that provides for investing 30% or more of its assets in units of participation
of collective investment body indicates equally in the constitutive documents
the maximum level of management fees that can be charged simultaneously to the
own collective investment body and the remaining investment bodies
collective in which you intend to invest, specifying in your report and annual accounts to
percentage of management fees charged to the collective investment body and
to the remaining collective investment bodies in which it has invested.
Article 142º
Distribution of income
The distribution or reinvestment of the investment body's income
collective takes effect on the terms set out in the constitutive documents that predict the
criteria, conditions and periodicity of the respective distribution.
Article 143.
Valuation and dissemination
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1-A The portfolio of the collective investment body is valued at its fair value, of
agreement with the rules laid down in the constitutive documents, in the terms set out in
regulation of CMVM.
2-The value of the units of participation of collective investment bodies is
calculated and disclosed:
a) All working days for collective investment bodies in values
securities, save if the CMVM authorizes a periodicity up to the limit of one month,
in the conditions of underwriting and rescue defined in the constitutive documents;
b) Monthly, at the very least, for alternative investment bodies in
open securities;
c) Monthly, at the very least, for open real estate investment bodies
and on all days when underwriting operations are permitted in the
conditions set out in the constitutive documents;
d) Monthly for the closed collective investment bodies, with
reference to the last day of the previous month, save if the CMVM authorizes the organisms
of collective investment that are not alternative investment bodies in
securities a lower periodicity, up to a limit of six months.
3-The value of the units of participation is disclosed in all locations and means of
marketing.
Article 144.
Rules and periodicity of real estate valuation
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1-A The assessment of real estate should be carried out by at least two evaluator experts in the
following situations:
a) With a minimum periodicity of 12 months, or, in the case of the organisms of
open real estate investment, in advance of the start of the rescue period, if
this is of lower periodicity than that;
b) Prior to its acquisition and disposal, and may not the reference date of the
valuation of the immovable being more than six months with respect to the date of the contract in
which is fixed the price of the transaction;
c) Where circumstances susceptible to induce significant changes occur occur
in the value of the immovable, namely the change in the classification of the soil,
considering always as significant a change in excess of 10% of that
value;
d) Previously to any increase or reduction of capital, in advance no
greater than six months, with respect to the date of achievement of the increase or reduction;
e) Previously to the merger and spinoff of real estate investment bodies, case
last assessment of the real estate that integrate the patrimonians ' respective respects has been
held more than six months ago in relation to the date of production of effects of the
merger;
f) Prior to settlement in kind of collective investment bodies, with
an advance no more than six months, regarding the date of achievement of the
liquidation.
2-With respect to construction projects, the evaluation shall be carried out by, by the
less, two evaluator experts in the following terms:
a) Previously at the beginning of the project;
b) With a minimum periodicity of 12 months and whenever circumstances occur
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susceptible to induce significant changes in the value of the immovable, considering
as significant a change in value greater than 20% of the total value of the work
provided for in the contract of employment;
c) In the event of an increase and reduction of capital, merger, spin-off or liquidation, with
a maximum of three months ' notice.
3-The rehabilitation projects and the works of improvement, magnification and requalification of
significant upstream real estate becomes subject to the scheme applicable to the projects of
construction.
4-Without prejudice to the provisions of the paragraph d ) of paragraph 8, real estate is valued by the average
simple of the values assigned by the two real estate evaluator experts.
5-Should the assigned values differ from each other by more than 20%, by reference to value
minor, the real estate in question is again assessed by a third expert evaluator of
real estate.
6-Whenever a third assessment occurs, the immovable is valued by the simple average of the
two evaluation values that are closer to each other or by the value of the third
assessment if it corresponds to the average of the previous ones.
7-By way of derogation from the provisions of paragraph 4, real estate is valued for the respect cost of
acquisition, from the moment they go on to integrate the heritage of the body of
collective investment and until a required assessment occurs in accordance with the forecast
in the n. paragraphs 1 and 2.
8-Are defined by regulation of the CMVM:
a) The criteria, methods and technical standards for assessment of real estate;
b) The conditions for disclosure of the evaluation reports, as well as of their submission to
CMVM;
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c) The significant amount of works for improvement, magnification and requalification of
real estate; and
d) Specific valuation rules for the construction projects.
Article 145.
Plurality and turnover of real estate evaluators experts
1-A The managing body should select the real estate evaluator experts by way of
ensure that you are appropriate plurality, and may not hire experts who meet
in a situation of incompatibility, as defined in special legislation.
2-In each assessment of an immovable shall participate an evaluator expert who does not have
assessed the immovable on the date of the previous assessment, owing to the managing entity
make available to the expert all relevant information and documentation for the purpose of
valuation of real estate.
3-An immovable cannot be assessed:
a) By the same expert evaluator on more than two successive dates;
b) In each period of four years, by the same expert evaluator in more than
50% of the valuations.
4-Exceed from n. ºs 2 and 3 the evaluations of construction or rehabilitation projects of
real estate or works of improvement, magnification and requalification of real estate of
significant amount, in which case the same evaluator experts can carry out all
the assessments required until the completion of the project or the work.
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Article 146.
Limits to shareholdings
1-The entities responsible for the management cannot, acting in tandem with any
person referred to in Article 304 (5) of the Securities Code, approved
by Decree-Law No. 486/99, of November 13, or with entities with which
maintain close relations, and with respect to the set of the bodies of
collective investment in securities and alternative investment bodies
in securities that are under management, carry out operations on account of these
that are susceptible to conferencing them a significant influence on any
entity.
2-A entity responsible for the management cannot, with respect to the body set
of collective investment that manages, acquire shares that confirm it more than 20% of the
voting rights in an entity or allowing it to exert significant influence
in your management.
3-The set of collective investment bodies in securities and
alternative investment bodies in securities managed by a
entity cannot hold more than:
a) 20% of the shares without the right to vote of the same issuer;
b) 50% of the obligations of a same issuer;
c) 60% of the units of participation of one same investment bodies
collective in securities or alternative investment bodies in
securities.
Article 147.
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Veiled operations
1-Without prejudice to the provisions of Article 141 (1), the entity responsible for the management
cannot carry out on account of the collective investment bodies that generate any
operations susceptible to generating conflicts of interest with the following entities:
a) The promoters of the collective investment bodies in a society-shaped manner;
b) The own;
c) The collective investment body in a heterogerated society-shaped form;
d) Entities holding stakes in excess of 10% of the social capital or
of the voting rights of the own or the collective investment body under
heterogerous societtal form;
e) The entities that find themselves in domain or group relation with the
entity responsible for the management, or the entities with whom those if
find in relation to domain or group;
f) The entities in which the entity responsible for the management, or entity that with
that one find in domain or group relationship, hold participation
greater than 20% of the social capital or voting rights;
g) The depositary or any entity that with this one finds in one of the relationships
referred to in points d ) a f );
h) The members of the social bodies of any of the entities referred to in points
previous;
i) The staff and other collaborators of any of the entities referred to in the
points a ) a f );
j) The different collective investment bodies per se managed.
2-A the managing body responsible for the management may, on account of the investment bodies
collective that manages, acquire or divest financial instruments to the entities referred to in the
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previous number when:
a) The transaction is carried out on regulated market or in trading system
multilateral and the counterparty is unknown; or
b) Obtained the prior authorization of the CMVM, if you check one of the following conditions:
i) The price of the transaction, considering the costs of the same, is more favorable
that the price formed on regulated market or trading system
multilateral or, if this does not exist, that firm offers of entities that do not
find themselves in a domain or group relationship with the responsible entity
by management, provided that it results in an unequivocal and proven advantage to
the collective investment body;
ii) The absence of regulated market transactions or trading system
multilateral and buyout offers during the 15 days immediately preceding
at the date of the disposal, provided that there is an unambiguous and evidenced
advantage for the collective investment body;
iii) The financial instruments:
1º) Be acquired in public underwriting offer whose conditions
include the commitment to which the application for your admission is made
to trading on regulated market;
2º) The issuer has financial instruments of the same type already admitted
in that regulated market; and
3º) The admission is obtained within a maximum of six months from the
presentation of the application.
iv) In the absence of liquid means held by the investment body
collective and depleted the borrowing capacity under the terms provided for in the law
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or in regulation of the CMVM, the net rescue applications of units of
participation exceed, in a period not exceeding five days, 10% of the value
global net investment body net of collective investment since it does not result
an unequivocal and proven disadvantage to the investment body
collective;
v) Considered the specifics of the operation and its context there is a
unequivocal and proven advantage for the collective investment body
in carrying out the operation.
3-In the situation provided for in the sub-paragraph iii) of the paragraph b ) of the previous number, if the admission of the
financial instruments not to occur within the said period, these are disposed of in the 15 days
subsequent to the expiry of that period.
4-Notwithstanding the provisions of paragraph 1, the entity responsible for the management may, on account of
of the collective investment bodies that generate:
a) Constitute as guarantors or counterparties of the investment body
capital collective guaranteed entities that find themselves in the predicted situations
in paragraph 1, provided that it demonstrates before the CMVM that the management of the body of
collective investment is conducted autonomfully in relation to the eventual
need for the triggering of the guarantees, in the strict compliance of the policy of
investment and in the interest of the participants;
b) Acquire, divest, lease, or hire another form of onerous exploitation of
real estate to the entities referred to in paragraph 1, obtained the prior authorization of the CMVM,
upon application by the entity responsible for the management demonstrating the
advantages of the operation and accompanied by the following elements:
i) Reports of the real estate evaluators;
ii) Applicable case, information relating to the comparison of the proposed values
with those practiced in the same immovable, concerning others
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tenants, or in adjacent real estate that may serve as a base
comparative;
iii) Contract project to celebrate.
5-The values determined by the evaluators ' experts referred to in the preceding paragraph serve
of reference to the price of the proposed transaction, and this price may not be higher, in the
case of acquisition of the real estate by the collective investment body, to the smallest of
values determined by the experts, nor lower, in the case of the alienation of the immovable by the
organism, to the greatest of the values determined by the experts.
6-A the managing body responsible for the management has a duty to know the relationships provided for in this
article.
7-A The decision is notified on the deadline, counted from the date of the application or the
supplementary information that the CMVM considers necessary, from:
a) 10 days, in respect of the transactions provided for in paragraph b ) of paragraph 2;
b) 30 days, with respect to the transactions provided for in paragraph 4.
8-In the absence of notification within the period referred to in the preceding paragraph shall be deemed
dismissed the request.
9-Does not apply to the requirement for authorization provided for in the paragraph b ) of paragraph 2 and in paragraph 4 to the
alternative, or directed, alternative investment bodies
exclusively to qualified investors, as long as there is agreement in assembly of
participants of:
a) 75% of the votes corresponding to the units of participation; and
b) Of the majority of the votes corresponding to the units of participation of the
participants who do not find themselves in one of the relations provided for in paragraph 1.
Article 148.
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Non-eligible assets
1-The collective investment body may not detain, directly or indirectly, assets
issued or guaranteed by the entities referred to in points a) a h ) of the Article 1 (1)
previous in value of more than 20% of the global net worth value.
2-A The detention of the financial instruments referred to in this article covers the title, the
usufruct, the situations confers on the holder the power to administer or dispose of the
same instruments, as well as those in which, having none of these powers, is
the real beneficiary of their fruits or may de facto have or administer them.
Article 149.
Operations prohibited to the collective investment body
1-A the managing body responsible for the management cannot grant credit, burdening or provide
guarantees on account of the collective investment body under management, except for the
obtaining funding within the limits set out in the present General Regime,
notwithstanding the possibility of being acquired for the investment body
collective securities, money market instruments or the listed assets
in the points c ), and ) and f ) of Article 172 (1) not entirely carried out.
2-A the managing body responsible for the management cannot, on account of the investment body
collective, accept the provision of guarantees or the granting of credit by participants of the
same organism, save if:
a) These operations fall into the exercise of the activity of the participants and the
conditions agreed to comply with the commercial terms practiced in the market; or
b) In the alternative investment bodies of particular subscription or
exclusively directed to qualified investors, there is prior agreement of all the
participants and foresight in the constitutive documents.
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3-A the managing body responsible for the management cannot, on account of the investment body
alternative under management, effector pledges of sale of real estate that are not yet
in the title of the alternative investment body, save the promises of sale
of real estate carried out in the framework of construction and rehabilitation projects of real estate.
Article 150.
Communication about transactions
1. The members of the governing bodies and the remaining responsible for the decisions of
investment of collective investment bodies inform the entity's respective respect
responsible for the management on the acquisitions and disposals of units of participation of the
collective investment bodies by it managed, of shares or of securities
that they give right to their acquisition, effected by themselves, by their respective spouses, by persons
that with them they find themselves in relation to economic dependence and by societies by
si mastered, wants the acquisitions to be effected on their own behalf, in representation
or on account of third parties, or by these on account of those, within 5 working days
count of the acquisition or divestance.
2. The entity responsible for the management sends to the CMVM, within 3 working days counted from the
respects recetion, and in the terms defined in regulation of the CMVM, the information
received in fulfillment of the provisions of the preceding paragraph.
Article 151.
Excecional situations
1-The limits to the investment provided for in Article 172 (7), in Articles 176 to 178,
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in the applicable regulations and constitutive documents can be overcome
as a result of the exercise of subscription rights or rights of conversion
inherent in securities or money market instruments held by the
collective investment body or in cases alheds to the will of the entity
responsible for the management, in the terms defined in regulation of the CMVM.
2-In the situations referred to in the preceding paragraph, decisions in respect of investments
have for priority objective the regularisation of the situation within the maximum period of six months,
taking into account the interest of the participants.
3-The limits referred to in paragraph 1 may be exceeded during the first six months
of activity of the collective investment body.
Article 152.
Mentions in advertising shares
1-The collective investment body can only be advertised after it has been
authorized its constitution.
2-Publication shares relating to collective investment bodies must be
clearly identified as such, to be correct and clear and not to induce in error.
3-Any advertising shares relating to collective investment bodies should not
contain assertions that contradict or diminish the importance of information
included, when required, in the prospeit and in the document with information
fundamental intended for investors.
4-Publication shares relating to collective investment bodies must still
indicate the existence of a prospeit and the availability of the document with information
fundamental intended for investors, when required, as well as the place and the
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language in which investors can obtain or have access to such documents.
SECTION II
Constitutive documents and information
SUBSECTION I
Key information aimed at investors
Article 153.
Nature and essential content of the document with fundamental information
intended for investors
1-The entities responsible for the management, for each of the investment bodies
collective by you managed, draw up a document with fundamental information
intended for investors.
2-A designation "fundamental information aimed at investors" is clearly
mentioned in the respecting document, in one of the languages referred to in point a ) from the
n Article 200 (3).
3-The document with fundamental information aimed at investors includes
appropriate and up-to-date information on the essential characteristics of the body of
collective investment in cause, which are premised on investors so as to allow-
to understand them the nature and risks inherent in the proposed investment product
and, therefore, make informed investment decisions.
4-The document with fundamental information aimed at investors contains, in
relation to the collective investment body in question, the following elements
essential:
a) Their identification;
b) Brief description of the investment objectives and their policy of
investments;
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c) Presentation of the previous results or, if applicable, of the results of the
anticipated scenarios;
d) The associated costs and charges;
e) The risk profile and remuneration for investment, including guidelines
appropriate and warnings about the risks inherent in investments in the bodies of
collective investment.
5-The essential elements contained in the document with fundamental information
intended for investors should be understandable to investors without it being
required the consultation of other documents.
6-The document with fundamental information aimed at investors indicates
clearly where and in what way supplementary information can be obtained on the
proposed investment, namely, where and in what way can the
prospeto and the annual and semiannual reports and accounts, free of charge and in any
moment, as well as the language in which such information is at the disposal of the
investors.
7-The document with fundamental information aimed at investors constitutes
pre-contractual information, and shall be:
a) Correct, clear and coherent with the prospearer, may not counteract or modify the
content of this;
b) Written in a succinct mode and in non-technical language, not inducing in error and from
mode to be able to be understood by unqualified investors;
c) Used without alteration or additions, with the exception of translation, in all
Member States in which the body of collective investment in values
securities have notified the marketing of their units of participation.
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8-The provisions of paragraph 1 shall not apply to the alternative investment bodies of
particular subscription or directed exclusively to qualified investors.
Article 154.
Content and format of the document with fundamental information aimed at the
investors
1-The detailed contents of the document with fundamental information aimed at the
investors is defined:
a) In Regulation (EU) No 583/2010 of the European Commission of July 1,
when this respects the collective investment body in securities;
b) In regulation of CMVM, in the remaining cases.
2-The format of the document with fundamental information aimed at investors is
fixed in regulation of the CMVM.
Article 155.
Civil liability
1-No one incurs civil liability merely by virtue of the document with
fundamental information intended for investors, or of their translation, unless the
even contains misleading mentions, is inaccurate or incoherent with the prospeto.
2-The document with fundamental information aimed at investors should contain
a clear warning about the respectable regime of civil liability.
Article 156.
Duty of provision of the document with fundamental information
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intended for investors
1-The marketer entities make the document available with information
key intended for investors with sufficient advance in respect of
proposed subscription of collective investment body share units.
2-The entities responsible for the management, for each of the investment bodies
collective by you managed, make the document available with fundamental information
intended for investors, at the request of the same:
a) To financial intermediaries who sell and advise investments in these
collective investment bodies or in products exposed to them; and
b) To the entities responsible for the elaboration of these products.
3-Financial intermediaries who sell or advise investments in the
collective investment bodies referred to in the preceding paragraph make available to the
your customers or potential customers the document with fundamental information
intended for investors.
SUBSECTION II
Prospeto, management regulation and contract of society
Article 157.
Elaboration of the prospeit
1-A The entity responsible for the management elaborates and keeps up to date the prospearship for each
collective investment body by you managed.
2-The provisions of the preceding paragraph shall not apply to the investment bodies
alternative of particular subscription or directed exclusively to investors
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qualified, without prejudice to the duty to draw up and keep up to date the regulation of
management pursuant to Art. 159 para.
Article 158.
Content of the prospeetus
1-The prospeetus includes, regardless of the assets in which the investment body
unseen collective, the information necessary for investors to be able to formulate
an informed judgement on the investment that is proposed to them and, among other subjects,
about the risks to it inherent, as well as a clear and easily
understandable from the risk profile of the collective investment body.
2-The prospeetus includes, among others, the information provided for in Schedule A of Annex II to the
present General Regime and that of it is an integral part, if they do not build on the
documents attached to the same.
3-The prospeit specifies the categories of assets in which the investment body
collective is authorized to invest and also refers to whether the operations are authorized
with derived financial instruments.
4-In case the transactions with derivative financial instruments are authorised, the
prospeto includes a highlighted mention, indicating whether these operations are effectuated to
coverage effects or for the purposes of realizing investment objectives, as well as
the possible incidence of the use of the said derivatives financial instruments in the
risk profile.
5-Case an unseen collective investment body, the main title, in any
asset category defined in Article 172 that are not securities or
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instruments of the money market or reproduce an index of stocks or securities of
debt under the conditions prescribed by Article 178, includes in its prospeit and, if applicable
of this, in all the advertising actions, a highlighted mention that draws attention to
their investment policy.
6-Case, due to the composition of the portfolio or the portfolio management techniques used, be
possible that the overall net value of a collective investment body has
a high volatility, in the terms set out in regulation of the CMVM, the prospect
and, where applicable, all advertising actions, includes a highlighted mention that calls
the attention to this characteristic.
7-A The request of an investor, the entity responsible for the management provides information
supplementary on the quantitative limits applicable in the risk management of the
collective investment body, on the methods used for the purpose and on the
recent developments in the risks and incomes of the major categories of
instruments.
8-The measures or indexes of profitability and risk of collective investment bodies
marketed in Portugal are calculated and disclosed, in the terms defined in
regulation of CMVM.
9-The management regulation and the society contract of the investment body
collective in a society-shaped form integrate the prospearth, to which they are attached.
10-The documents referred to in the preceding paragraph may not be attached to the prospeetus,
provided that the investor is informed that the same is at their disposal
in the places indicated in the constitutive documents and that the same may be
sent without charge upon request.
Article 159.
Contents of the management regulation
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1-The management regulation contains the identification elements of the body of
collective investment, of the entity responsible for the management, of the depositary, of the entities
subcontractors and the functions they exert, and clearly define the rights and
obligations of the participants, the entity responsible for the management and the depositary, the
conditions for the replacement of these entities, the policy of investments and the
settlement conditions of the collective investment body.
2-The management regulation indicates, in particular:
a) The denomination of the collective investment body, which may not be in
disagreement with the policy of investments and income, the date of
constitution and respect duration;
b) The denomination and seat of the entity responsible for the management, the conditions of its
replacement and identification of the effectively subcontracted functions and entities;
c) In the case of collective investment bodies in society-form
heterogerides, the roles incumbent on these and the articulation with the entity
gestures;
d) The appellation and seat of the depositary and the conditions of its replacement;
e) With respect to marketing, the identification:
i) Of the marketers and the means of marketing used;
ii) Of the Member States where the entity responsible for the management intends
commercialize the units of participation;
iii) Of the investors to which it is intended;
iv) If applicable, of the mechanisms adopted to prevent the units from
participation can be commercialized with investors not
qualified, particularly when the entity responsible for the management
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contrate to the third the marketing of the participation units of the
alternative investment bodies;
f) The investment policy of the collective investment body, so as to
clearly identify your goal, special nature, if it is the case, the techniques
of management and the experience of the entity responsible for the management in the use of these,
the assets that can integrate your portfolio, the level of specialization, if it exists, in
sectoral, geographical terms or by type of asset, the possibility, purpose and
limits on indebtedness, the lending policy of
financial instruments and the financing contraction policy, highlighting
especially, in the applicable cases:
i) The purpose pursued with the use of financial instruments
derivatives, depending on whether it is for the purposes of risk coverage or how
management technique, and the respect incidence in the risk profile;
ii) The identification of the index that the collective investment body
reproduces;
iii) The identification of the entities in which the collective investment body
forecasts to invest more than 35% of its overall net value;
iv) The special characteristics of the collective investment body in
function of the composition of the portfolio or the management techniques of the same,
particularly its high volatility;
g) The income distribution policy of the collective investment body,
defined objectively by way, in particular, to allow to verify that the policy is
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of capitalization or distribution, partial or total and, in this case, what the criteria
and periodicity of distribution;
h) The general policy of the managing body concerning the exercise of voting rights
inherent in the shares held by the collective investment body;
i) The existence of underwriting, rescue and transfer commissions between
collective investment bodies and indication of respect values;
j) Form and rules of calculating the value of each category of units of participation
for underwriting, rescue and refund effects, including the time of day
used as a reference for the calculation, and the form and periodicity of disclosure of the
same;
k) Form and periodicity of communication to the participants of the composition
discriminated against the portfolio of the collective investment body;
l) The conditions and modes of payment for underwriting, ransom and reimbursement, including
payments in kind, where applicable, and criteria for the allocation of the units of
subscribed participation;
m) The identification of the units of participation, with indication of the different
categories and characteristics, of the mode of representation and, if applicable, of the existence
of voting rights of the participants;
n) The minimum amount chargeable by subscription;
o) The maximum period for the purpose of payment of the ransom applications;
p) The initial value of the unit of participation for the purpose of constitution of the body
of collective investment;
q) The conditions for the transfer of body participation units from
collective investment;
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r) All charges borne by the collective investment body;
s) The value, calculation mode and conditions of collection of the management commissions and
of deposit, and the maximum value of the management fees that may be charged at
simultaneous to the collective investment body itself and to the remaining
collective investment body in which it intends to invest;
t) The conditions for suspension of the underwriting and rescue operations of the units of
participation;
u) The rules and method of calculating the value of the assets of the investment body
collective;
v) Synthesis of the policy of execution of operations and the policy of transmission of orders;
w) Period of annual economic exercise when different from the corresponding to the year
civil;
x) The settlement regime of the collective investment body.
3-The management regulation of a closed collective investment body indicates
still:
a) The amount of the capital, the number of units of participation and the conditions in
that the increase or reduction in the number of units of participation is possible;
b) The mention on the solicitation of admission to trading on market
regulated or in multilateral trading system;
c) In the collective investment bodies with determined duration, the
possibility and the conditions of its extension;
d) The skills and rules of convening and operating the assemblies of
participants;
e) The term of subscription, the prorogation criteria and the scheme for the incomplete subscription,
applicable in the constitution of the collective investment body and the issuance of
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new units of participation;
f) Period of repayment of the units of participation, particularly the respect
start and conditions for it to occur, and may not overlap with the period
of subscribing;
g) The existence of guarantees provided by third parties, of repayment of the capital or of
payment of income, and the respect terms and conditions;
4-The management regulation of an alternative investment body identifies as yet:
a) The auditor of the collective investment body;
b) The policy with regard to the use of the leverage effect;
c) The maximum limit of the leverage effect, ascertained in the terms set out in
regulation of CMVM and considering, inter alia:
i) The type of alternative investment body;
ii) The investment strategy of the alternative investment body;
iii) The sources of the leveraging effect of the investment body
alternative;
iv) Any other interdependence or relevant relationship with others
financial services institutions susceptible to constitute systemic risk;
v) The need to limit exposure to a single counterparty;
vi) To what extent the leverage effect is covered by guarantees;
vii) The ratio between the asset and the liability;
viii) The scale, nature and extent of the activity of the entity responsible for the
management in the markets in question;
d) The existence and competence of advisory or investment committees and
external consultants;
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e) Other elements required by the CMVM which, taking into account the specificities
presented by the investment body, are considered relevant.
SUBSECTION III
Report, accounts and other information
Article 160.
Drafting and deadlines for disclosure of the reports and accounts
1-A entity responsible for the elabora management, communicates to CMVM and publishes, for each
collective investment body by you managed or marketed in Portugal, the
next:
a) A report and accounts for annual economic exercise finishes on December 31
previous and respectable auditor's report;
b) A report and accounts, and respects auditor's report, pertaining to activity in the six
first months of each economic exercise.
2-A communication and publication referred to in paragraph 1 are effected in the following deadlines
mentioned, from the expiry of the period to which they refer:
a) Four months for the report and accounts relating to the annual economic exercise;
b) Two months for the report and accounts relating to the first semester.
3-Do not apply the provisions of paragraph b ) of paragraph 1 to the investment bodies
alternative of particular subscription or directed exclusively to investors
qualified.
Article 161.
Contents of the reports and accounts and reports of the auditors
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1-The annual and half-yearly reports and accounts of the collective investment bodies
must contain a balance sheet, a demonstration of exercise results and respect
attachments, a management report, including, inter alia, the description of the activities of the
exercise and the other information provided for in Schedule B of Annex II to the present
General Regime and that of it is an integral part, as well as all information
significant that enable investors to form, with knowledge of cause, a
judgment on the evolution of the activity and the results of the investment body
collective.
2-The report and annual accounts of the collective investment bodies contain still:
a) The total amount of remuneration for the economic exercise, subdivided into
fixed and variable remuneration, paid by the entity responsible for the management to its
collaborators, the number of beneficiaries and, if applicable, the commissions of
performance paid by the collective investment body;
b) The aggregate amount of remuneration broken down by the executive members of the
social bodies and the remaining collaborators of the entity responsible for the management
whose activities have a significant impact on the risk profile of the organism
of collective investment.
3-Case the collective investment body distributions an interim yield, the
report and semi-annual accounts must indicate the result deducted from taxes for the
pay semester and amount of income paid or payable.
4-The report and annual accounts still contain an identification and justification of deviations
occurring in relation to the general policy for the exercise of the voting rights inherent in the shares
held by the collective investment body, when, in respect of the set of
collective investment bodies under management, be exceeded 1% of the rights to
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voting corresponding to the social capital of the issuing company.
5-In the periodic reporting documents of investment body
alternative, where this is applicable, is further highlighted the overall behavior
of this and the assets that make it up, taking into account the pursuit of its objectives and the
your strategic orientation.
6-Should the alternative investment body publish the report and annual accounts
provided for in Article 245 of the Securities Code, approved by the Decree-Law
n ° 486/99 of November 13, they only have to be provided to the investors who request it
the information referred to in paragraphs 1 and 2 that are complementary to the information
constants of that report and annual accounts, either separately or as an annex to the
referred to report and accounts.
7-In a note appended to the report and annual accounts of the collective investment bodies, the
entities responsible for the management give publicity to the errors of valorisation of the
units of participation of the collective investment body and the amounts paid
to collective investment bodies and participants with compensatory character
of them arising.
8-The auditor's report on the report and annual accounts of the investment bodies
collective must decide, inter alia, on:
a) The proper fulfillment of the investment and distribution policies of the
results defined in the management regulation of the investment body
collective;
b) The appropriate assessment by the entity responsible for the management of the assets and
liabilities of the collective investment body, in particular with respect to the
financial instruments transacted out of regulated market and from
multilateral trading system and real estate assets;
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c) The monitoring of operations with the entities referred to in Article 147 (1);
d) The fulfilment of the valuation criteria set out in the documents
constitutive and the fulfilment of the duty provided for in the preceding paragraph;
e) The monitoring of operations carried out outside the regulated and system market
of multilateral trading;
f) The control of the underwriting and rescue movements of the units of
participation;
g) The fulfilment of the registration duties relating to non-financial assets, when
applicable.
9-The contents and format of the report and annual accounts of investment body
alternative comply with the provisions of the Delegated Regulation (EU) No 231/2013 of the
European Commission of December 19, 2012.
Article 162.
Composition of the portfolio
The entity responsible for the management publishes and sends to the CMVM the discriminated composition of the
portfolio of each collective investment body, the global net worth value and the
number of units of participation in circulation and other information elements in the
terms of regulation of the CMVM.
SUBSECTION IV
Disclosure
Article 163.
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Disclosure
1-The prospearer, the latest reports and annual and half-yearly accounts are published and,
together with the document with the fundamental information aimed at the
investors, are provided free of charge to investors in a lasting support or
through a site on the Internet.
2-Changes to the documents referred to in the preceding paragraph shall also be covered
by the duties of publication and making available there.
3-It is further provided free of charge a paper copy of the documents referred to us
previous figures for investors who request it.
4-The entities responsible for the management make available, equally, on the respective site in the
Internet an updated version of the document with the fundamental information
intended for investors and the prospearth.
5-A the provision of the document with the fundamental information aimed at the
investors and the prospearability in durable support other than paper or through
Internet obeys the conditions set out in Regulation (EU) No 583/2010, of 1
of July 2010.
6-A The publication of the reports and accounts and the auditor's own reports can be
replaced by the disclosure of a notice with the mention that the documents if
they find available to the public at the places indicated in the prospeit and in the document
with the fundamental information aimed at investors and that the same may
be sent free of charge to the participants who require it.
Article 164.
Communication to the competent authorities
1-A the managing body responsible for the management sends to the information diffusion system of the
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CMVM, provided for in Article 367 of the Securities Code, approved by the
Decree-Law No 486/99 of November 13, the documents referred to in paragraphs 1 and 4 of the
previous article at the time of your disclosure, in case this is not the means of disclosure
chosen.
2-A The managing company of investment funds of furniture faculty, when requested, à
CMVM, the prospeit and respect changes, as well as the annual report and accounts and
semestral, relating to collective investment bodies in securities of the
European Union by you managed.
Article 165.
Dissemination on the CMVM website on the Internet
The CMVM disseminates and maintains up-to-date on its website the legal provisions and
regulations relating to the constitution, operation and vicissitudes of the bodies of
collective investment, as well as a translated version in English.
SECTION III
Groupings, guarantees and indexes
Article 166.
Groupings and guarantees
1-Under the terms to be defined in regulation of the CMVM, groupings may be constituted
of collective investment bodies in securities managed by the same
gestures entity, intended to provide participants with advantages in the transfer
of units of participation.
2-The units of participation of collective investment bodies in values
Integral securities of a grouping cannot be marketed outside the
grouping.
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3-Clusters of collective investment bodies in securities have
a prospeit and a document with fundamental information aimed at the
single investors, which compulsorily indicate the special conditions of
transfer of units of participation.
4-Previous numbers are applicable, with due adaptations, to organisms of
alternative investment in securities.
5-The creation of mixed groupings of investment bodies is not allowed
collective in securities and alternative investment bodies in values
securities.
6-Under the terms to be defined in regulation of the CMVM, bodies may be constituted
of collective investment that will conduct guarantees provided by third parties or that
result from the configuration of its heritage, intended for the protection of the capital, of a
certain income or of a particular income profile.
Article 167.
Indexes
For the purposes of the provisions of this General Regime, the indices to be reproduced, total or
partially, by the collective investment bodies present the following
characteristics:
a) They are sufficiently diversified, so that their composition is such that the
price movements or the trading activities relating to an asset not
improperly influence the overall performance of the index;
b) They represent a suitable reference standard in relation to the markets to which
say respect, owing to the effect:
i) The index measure the performance of a representative group of assets
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underlying in a relevant and appropriate way;
ii) The index is revised or reformulated periodically to ensure that it continues
reflecting the markets to which it relates, depending on criteria publicly
available;
c) They are published in an appropriate manner, and they shall for the purpose of:
i) Your publishing process settles on solid procedures to collect
prices, calculate and subsequently publish the value of the index, including the
method of determining the value of the assets for which the market price
is not available;
ii) Be provided, on an extended basis and in good time, relevant information
on subjects such as the methodologies of calculation and reformulation of the indices,
the changes in the indices or any operational difficulties in the provision
of timely or exact information.
CHAPTER II
From the activity of collective investment bodies in securities
SECTION I
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Heritage
SUBSECTION I
Eligible assets and management
Article 168.
Securities
1-This Chapter shall apply to the following securities:
a) Stock and other equivalent instruments, bonds and other instruments
representative of debt, as well as any other negotiable instruments
which confirm the right to purchase these securities, provided that:
i) Present a liquidity that does not compromise the capacity of the body of
collective investment in securities of satisfying the applications for
rescue;
ii) Appropriate information is available about them, including
periodical, exact and complete information on the value furnished
to the market or, in the case of the securities referred to in paragraph 7 of the
article 172, to the body of collective investment in securities;
iii) In the case of securities referred to in Article 172 (1), there are, in
relation to them, exact, reliable and periodic prices, of market or
made available by independent assessment systems of issuers;
iv) In the case of other securities, they are the subject of periodic evaluation
on the basis of the information on the furnishing value provided by the issuer,
in appropriate investment studies, or in methodologies universally
recognized;
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b) The units of participation of closed collective investment bodies that:
i) Comply with the criteria set out in the preceding paragraph;
ii) Be subject to mechanisms of societary or equivalent government;
iii) They are managed by an entity subject to regulation directed at the protection of the
investors;
c) The financial instruments that:
i) Comply with the criteria set out in the a );
ii) Have as underlying other assets, even though these differ from those
in Article 172;
2-Considerate in the situation provided for in the paragraph a ) of the previous number, save information
obtained by the entity responsible for the management leading to the different conclusion, the
securities admitted to trading or traded on a regulated market.
Article 169.
Money market instruments
1-For the purposes of this Chapter, they are instruments of the money market the
communicable financial instruments, usually traded on the market
monetary, liquids and the value of which can be determined with precision to any
moment.
2-Are understood as instruments of the money market normally traded in the
money market the financial instruments that have a maturity, at the
issue, equal to or less than 397 days or that they dismiss, at the time of acquisition, less than
397 days of the due date.
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3-Are still considered as instruments of the money market the instruments
financial that:
a) They are subjected to periodic adjustments of profitability depending on the
money market conditions at least once in every 397 days; or
b) They have a risk profile, including credit and interest rate risks,
corresponding to that of financial instruments that have a maturity
as referred to in the preceding paragraph or are subjected to adjustments of
profitability as referred to in the preceding paragraph.
4-Are understood as liquid money market instruments the instruments
financial that can be sold with limited costs within a suitably
short, taking into account the obligation of the entity responsible for the management of satisfying the
requests for ransom.
5-Are understood as instruments of the money market whose value may be
determined with correctness at any time those for which they are
available exact and reliable evaluation systems that:
a) Allow the entity responsible for the management to calculate the value of the unit of
participation of the collective investment body in securities in
compliance with the value by which the financial instrument held in the portfolio
can be exchanged between parties that act with full knowledge of cause and of
free will, in the context of an operation in which there is no relationship
between the parties;
b) Assented in market data or evaluation models, including systems
based on amortized costs.
6-It is considered that the criteria referred to in paragraphs 4 and 5 are respected in the case of
financial instruments that are usually traded on the money market,
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as referred to in paragraph 1, and which are admitted to trading or negotiated in a
regulated market, in accordance with point (s) a ) of Article 172 (1),
except if the entity responsible for the management possesses information leading to
a different conclusion.
Article 170.
Derived financial instruments
1-Credit derivatives financial instruments are included in the instruments
financial derivatives referred to in para. and ) of Article 172 (1) when they comply with the
following criteria:
a) Do not result in the delivery or transfer of assets beyond those anticipated as
permissible in Article 172, including cash;
b) Comply with the criteria applicable to derivatives traded financial instruments
out of regulated market set out in paragraphs 2 and 3 and in subparagraphs ii ) and iii )
of the paragraph and ) of Article 172 (1);
c) Your risks are properly taken into account by the risk management process
of the collective investment body in securities, as well as by the
its internal control mechanisms in the case of risk asymmetry of the
information between the collective investment body in securities and the
counterparty of the credit derivative, resulting from the possibility of access from the
counterparty to non-public information about the companies to whose assets the
credit derivatives make reference.
2-For the purposes of sub-paragraph iii ) of the paragraph and ) of Article 172 (1) is understood to be fair
value the amount by which a financial instrument can be exchanged or a liability
liquidated between parties that act with full knowledge of cause and free will,
in the framework of an operation in which there is no relationship between the parties.
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3-For the purposes of sub-paragraph iii ) of the paragraph and ) of Article 172 (1) is understood by evaluation
reliable and verifiable assessment, by the collective investment body in values
securities, corresponding to fair value, as referred to in paragraph 2, which no
depend only on the price indicated by the counterparty and that it meets the following criteria:
a) It is based on a reliable updated market value of the instrument or, if that value
not to be available, in a value determination model that uses a
universally recognized methodology;
b) Their verification is carried out by:
i) A third party deemed appropriate, independent of the counterparty of the
derivative financial instrument traded outside of regulated market and
of multilateral trading system and with an appropriate frequency; or
ii) A service of the entity responsible for the independent management of the
department responsible for the management of the assets, properly equipped for the
effect.
4-A reference to net financial instruments excludes financial instruments
derivatives on goods.
Article 171.
Financial indexes
1-When the financial index integrates assets referred to in Article 172 (1) thereof,
composition is, at a minimum, diversified in accordance with Article 178.
2-When the financial index integrates assets beyond those referred to in Article 172 (1), the
its composition presents a diversification equivalent to that provided for in Article 178.
3-The index should be reviewed or reformulated periodically to ensure that it continues to
reflect the markets to which it concerns, depending on publicly available criteria.
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4-The underlying assets of the financial indices are sufficiently liquid, allowing,
on the basis of the information disclosed under the terms of the ( c) of Article 167, the reproduction
of the indices by the investors.
5-Are derivative financial instruments on a combination of the assets referred to in
point ( and ) of Article 172 (1) those who, failing to meet the established criteria
in the preceding paragraphs and in Article 167, meet the criteria set out in the
point ( and ) of Article 172 (1), with the exception of financial indices.
Article 172.
Eligible assets
1-The portfolios of collective investment bodies in securities are
consisting of liquid assets that are:
a) Securities and money market instruments:
i) Admitted to trading or traded on regulated market of State-
Member, in the acetation of Articles 199 and 209 of the Code of Values
Securities, approved by Decree-Law No. 486/99, of November 13, or in
another regulated market of a Member State with functioning
regular, recognized and open to the public;
ii) Admitted to trading or trading in another regulated market of
third country, with regular functioning, recognized and open to the public,
as long as the choice of this market is authorized by the CMVM or is
provided for in the constitutive documents;
b) Newly issued securities, provided that the conditions of issuance
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include the commitment to which the application for admission to trading is submitted
in one of the markets referred to in the preceding paragraph and provided that such admission is obtained
within one year of the date of issue;
c) Units of participation:
i) From collective investment bodies in authorized securities
in the terms of the present General Regime;
ii) From other collective investment bodies, authorised or not in a
Member State, provided that:
1º) Be collective investment bodies that invest in the assets
referred to in this Subsection;
2º) Be authorised under legislation that subject them to a regime of
supervision that the CMVM considers equivalent to that provided in the present
General Regime, and that cooperation with the authorities is ensured
competent for supervision;
3º) Ensure participants a level of protection equivalent to what
results from the present General Regime, particularly with regard to
segregation of assets, contraction and lending and sales to
discovered of securities and money market instruments;
4º) Elaborate annual and half-yearly reporting and accounts that allow for a
assessment of your asset and liability, as well as your revenue and
operations; and
5º) Such collective investment bodies may not, in the terms of the
respects constitutive documents, invest more than 10% of its
assets in units of participation of other bodies of
collective investment;
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d) Bank deposits to the order or term of not more than 12 months and which are
susceptible of early mobilization, together with credit institutions with headquarters in
Member State or in a third country, provided that, in this case, subject to standards
prudential equivalents equivalent to those listed in the European Union law;
e) Derivative financial instruments traded on regulated markets
referred to in paragraph a ), or derivatives financial instruments transacted out of
regulated market and multilateral trading system, provided that:
i) The underlying assets are covered by the present number, instruments
financial that possesses at least one characteristic of these assets, or they are
financial indices, interest rates, foreign exchange or foreign exchange in which the body
of collective investment in securities can effector their
applications, in the terms of the constitutive documents;
ii) The counterparties in the operations are institutions authorized and subject to
prudential supervision, in accordance with criteria defined by the legislation of the
European Union, or subject to equivalent prudential rules; and
iii) The instruments are subject to reliable and verifiable daily assessment and can
be sold, liquidated or closed at any time by your fair
value, on the initiative of the collective investment body in values
securities.
f) Untraded money market instruments in the markets
regulated referred to in para. a ), whose issuance or issuer is the object of
regulation for the purposes of protecting investors or saving, since
that:
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i) Comply with one of the criteria set out in Article 169 (2) and 3 and all
the criteria set out in paragraphs 4 and 5 of that same article;
ii) Appropriate information is available about them, including
information that enables an appropriate assessment of credit risks
related to the investment in such instruments, taking into account the
point ( c) of paragraph 2, and the n. paragraphs 4 and 6;
iii) Be freely transmittable.
2-Considerate included in the paragraph f ) from the previous number, when they meet the requirements
there established, the instruments of the money market:
a) Issued or guaranteed by organs of the central, regional or local administration, or
by the central bank of a Member State, by the European Central Bank, by the
European Union, by the European Investment Bank, by a third country or, in the
case of a federal state, by one of the states that make up the federation, or by
an international institution of public character to which one or more belong to one or more
Member States;
b) Issued by an issuer of securities admitted to trading in a
of the regulated markets referred to in para. a) of the previous number;
c) Issued or guaranteed by an institution subject to prudential supervision, of
agreement with criteria defined by the European Union's legislation, or subject to rules
equivalent prudential, as long as it exists:
i) Information on the issuance or the issuance programme or on the situation
legal and financial of the issuer prior to the issuance of the market instrument
monetary;
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ii) Update of the information referred to in the previous subparagraph on a basis
periodical and whenever a significant development occurs;
iii) Availability of reliable statistics on the issuance or the programme of
issuance or other data that allow for an appropriate assessment of the risks of
credit related to the investment in these instruments;
d) Issued by other entities, recognized by the CMVM, provided that the
investment in these values confers on investors an equivalent protection to the
referred to in points a ) a c ) and the issuer:
i) Be an entity with capital and reserves of minimum amount of € 10000000
to present and publish your annual accounts in accordance with the
Directive No 2013 /34/UE of the European Parliament and of the Council, of 26 of
June 2013;
ii) Be an entity that, within a group that includes multiple entities
quoted, specialize in the group's funding; or
iii) Be an entity specialized in the financing of securitisation vehicles
with which it celebrates credit opening contracts.
3-For the purposes of the d ) of the preceding paragraph shall be deemed to be:
a) The securitisation vehicles are structures, in the society-like form, of trust or
contractual, created for the purposes of securitisation operations;
b) Credit opening contracts are concluded with an institution that
complies with the provisions of the paragraph c ) of the previous number.
4-Regarding all the instruments of the money market covered by the point a )
of paragraph 2, with the exception of those referred to in paragraph 6 and of those issued by the Central Bank
European or by a central bank of a Member State, the appropriate information,
as referred to in sub-paragraph ii ) of the paragraph f ) of paragraph 1, consist of the information
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on the issuance or the issuance programme or on the legal and financial situation of the
issuer prior to the issuance of the money market instrument.
5-A reference to the point c ) of paragraph 2 a an institution object of prudential supervision that
respect prudential rules considered by the competent authorities as being,
at least, as stringent as those provided for by the European Union law is understood
as a reference to an issuer that is the object of prudential supervision, respects
prudential rules and meets one of the following criteria:
a) It is located in the European economic area;
b) It is located in an OECD country belonging to the Group of 10;
c) It has, at the very least, a rating of risk;
d) It can be demonstrated, on the basis of an in-depth analysis of the issuer, that
the prudential rules that apply to it are at least as stringent as the
provided for by the law of the European Union.
6-For the purposes of the money market instruments referred to in points b ) and d ) from the
n. 2, as well as for those issued by a local or regional authority of a State-
Member or by an international public body, but which are not guaranteed by
a Member State or, in the case of a federal State, by one of the States that
make up the federation, by one of the members that make up the federation, the information
appropriate, in accordance with that referred to in paragraph (f) (ii) of paragraph 1
consists of:
a) Information on the issuance or the issuance programme and on the legal situation
and financial of the issuer prior to the issuance of the money market instrument;
b) Updates of the information referred to in the preceding paragraph on a periodic basis and
where a significant development occurs;
c) Verification of the information referred to in para. a) by third parties duly
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qualified not subject to instructions from the issuer;
d) Availability of reliable statistics on the issuance or emission programmes.
7-A collective investment body in securities may invest up to 10%
of its global net worth in securities and market instruments
money other than those referred to in paragraph 1, save those mentioned in the following number.
8-Cannot be acquired for collective investment bodies in values
securities precious metals nor representative certificates of these.
9-Collective investment bodies in a society-shaped way can acquire the goods
furniture and real estate indispensable to the direct exercise of your activity.
Article 173.
Techniques and management tools
1-A the managing body responsible for the management may use techniques and tools linked to
securities and money market instruments, in the conditions and within the
limits that set out in the constitutive documents, provided that such techniques and
instruments are used for the purpose of effective portfolio management, in the terms
defined in the present General Regime or in regulation of the CMVM.
2-A reference to techniques and instruments related to securities and
money market instruments for the purpose of effective portfolio management is
understood as a reference to techniques and instruments that:
a) Be economically appropriate, in so far as your application presents
a good relationship between cost and effectiveness;
b) Contribute to pursuing at least one of the following specific objectives:
i) Reduction of risks;
ii) Reduction of costs;
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iii) Provision of capital or additional income for the body of
collective investment in securities with a consistent level of risk
with the risk profile of the collective investment body in values
securities and with the rules of diversification of risks set out in the
article 176.
3-The techniques and tools that meet the criteria set out in the number
previous and that they are related to money market instruments are
considered techniques and instruments related to market instruments
monetary for the purposes of effective portfolio management.
4-A The entity responsible for the management regularly communicates to the CMVM the use of the
techniques and instruments, including the type of derivative financial instruments, the
underlying risks, the quantitative limits and the methods used to calculate risks
associated with the transaction of financial instruments derived by each organism from
collective investment in securities.
5-A global exposure of each collective investment body in securities
in derivative financial instruments may not exceed its overall net value.
6-A exposure to which the preceding paragraph is concerned is calculated taking into account the value of the
underlying assets and the respective risks, namely, if applicable, the risk of
counterpart, the future market movements and the time available to settle the
positions.
7-Where a value furnishing or instrument of the money market incorporates
derivative financial instruments, the latter are taken into account for the purposes of the
calculation of the limits imposed on the use of derivative financial instruments.
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8-Are understood as securities with incorporation of a derivative, the
financial instruments that comply with the criteria set out in Article 168 (1)
and containing an underlying asset that complies with the following criteria:
a) By virtue of this asset, some or all of the cash flows that otherwise
would be required by the furnishing value that works as a basic contract can
be changed depending on a specified interest rate, of a price of
financial instruments, of an exchange rate, of an index of prices or fees,
of a rating of the credit risk, a credit index or other variable and,
therefore, they vary in a similar way to an autonomous derivative;
b) Their economic characteristics and risks do not have a close relationship with the
economic characteristics and the risks of the basic contract;
c) It has a significant impact on the risk profile and the determination of the price of the
furnishing value.
9-The instruments of the money market that meet one of the established criteria
in Article 169 (2) and (3) and all the criteria set out in paragraphs 4 and 5 of the same
article and containing an asset that complies with the criteria set out in the number
previous are considered money market instruments with a derivative
incorporated.
10-It is considered that a furniture value or a money market instrument will not
incorporates a derivative if it contains an element that is contractually transmittable,
regardless of the furnishing value or the money market instrument,
being that element considered a distinct financial instrument.
11-A the managing body responsible for the management uses risk management processes that
allow at any time to control and evaluate your positions on instruments
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financial derivatives and the respective contribution to the overall risk profile of the portfolio, the
which allow an accurate and independent assessment of financial instruments
derivatives traded outside of regulated market and trading system
multilateral.
SUBSECTION II
Limits
Article 174.
Borrowing
1-The entities responsible for the management can borrow on account of the
collective investment bodies in securities that they manage, with the duration
maximum of 120 days, followed or interpolated, in a period of one year and up to the limit
of 10% of the global net value of the collective investment body in values
securities, without prejudice to the use of management techniques relating to borrowing and
reporting of securities.
2-Collective investment bodies in securities under society-shaped
may still borrow that allow for the acquisition of real estate
indispensable to the direct exercise of its activities up to 10% of its net worth
global.
3-Case the constitutive documents of the collective investment body in values
securities in a society-shaped form predict the possibility of a body of
collective investment in a society-shaped way borrow under the figures
previous, the respective amounts are not allowed to exceed together 15% of the total
of its overall net worth.
4-Collective investment bodies in securities may still acquire
currency through triangular loans ( back-to-back ).
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Article 175.
Operations prohibited to the body of collective investment in securities
1-A collective investment body in securities may not acquire more
from:
a) 10% of the shares without the right to vote of the same issuer;
b) 10% of the debt securities of a same issuer;
c) 25% of the units of participation of a same investment body
collective in securities or alternative investment body in
securities;
d) 10% of the instruments of the money market of a same issuer.
2-The limits provided for in points b ) a d ) of the preceding paragraph may not be respected in the
timing of the acquisition if, at that time, the gross amount of the debt securities or
of the instruments of the money market or the net amount of securities issued not
can be calculated.
3-The provisions of paragraph 1 shall not apply in the case of securities and instruments of the
money market issued or guaranteed by a Member State, by its
local or regional authorities, by international institutions of public character to which
belong to one or more Member States or by a third country.
4-A the managing body responsible for the management cannot, on account of the investment body
collective in securities:
a) Burdening by any way the assets of the collective investment body in
securities, save for the realization of the operations provided for in Articles 173.
and 174.
b) Acquire any asset object of real guarantees, penhora or procedures
cautionary;
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c) Check out the short sales of securities, market instruments
monetary or other instruments referred to in points c ), and ) and f ) of paragraph 1 of the
article 172;
d) Grant credits or give guarantees.
5-The provisions of the d ) of the preceding paragraph shall not preclude the acquisition of the instruments
financial referred to in para. c ) of the same number, not entirely realized.
Article 176.
Limits by entity
1-A collective investment body in securities cannot invest any more
from:
a) 10% of its global net worth in securities and market instruments
money issued by a same entity, without prejudice to the provisions of paragraph 3;
b) 20% of its overall net value in deposits consisting of one same
entity.
2-A exhibition of the collective investment body in securities at the risk of
counterparty in a transaction of instruments derived outside regulated market
and of multilateral trading system may not be higher than:
a) 10% of its overall net value when the counterparty is a credit institution
seated in a Member State or, if it is seated in a third country, be
subject to prudential standards that the CMVM considers equivalent to those provided for in
legislation of the European Union;
b) 5% of its overall net worth, in the other cases.
3-The set of the securities and instruments of the money market which, by
issuer, account for more than 5% of the overall net value of the body of
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collective investment cannot exceed 40% of this value.
4-The limit referred to in the preceding paragraph shall not apply to deposits and transactions on
derivative financial instruments carried out outside of regulated market and
multilateral trading system when the counterparty is an entity subject to
prudential supervision.
5-The limit referred to in paragraph a ) of paragraph 1 is raised to 35% in the case of securities
and money market instruments issued or guaranteed by a Member State,
by its local or regional authorities, by a third state or by institutions
international character of public character to which one or more Member States belong.
6-The limits referred to in paragraph a ) of paragraph 1 and in paragraph 3 are, respectively, high for
25% and 80%, in the case of obligations, notably mortgages, issued by a
credit institution with registered office in a Member State.
7-From the conditions of issue of the obligations referred to in the preceding paragraph has to result,
namely, that the value by them represented is guaranteed by assets that cover
in full, up to the maturity of the obligations, the commitments arising therefrom and
that are affections for privilege to the repayment of capital and payment of interest
due in case of default of the issuer.
8-Without prejudice to the provisions of paragraphs 5 and 6, a collective investment body in
securities may not accumulate a value of more than 20% of its net value
global in securities, money market instruments, deposits and
exposure to off-market traded financial instruments
regulated and multilateral trading system together with the same entity.
9-The securities and money market instruments referred to in paragraphs 5 and 6
are not considered for application of the limit of 40% set out in paragraph 3.
10-The limits provided for in the preceding paragraphs may not be accumulated and, by
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Therefore, investments in securities or market instruments
money issued by the same entity, or in deposits or derivative instruments
constituted together of this same entity under the terms of paragraphs 1 a to 7, may not exceed,
in its entirety, 35% of the assets of the collective investment body in values
securities.
11-A collective investment body in securities can invest up to 100%
of its global net worth in securities or market instruments
money issued or guaranteed by a Member State, by its local authorities
or regional, by international institutions of public character to which one or
more Member States or by a third State, provided that they respect at least the
six different emissions and that the values belonging to each issue do not exceed 30%
of the assets of the collective investment body in securities.
12-The investment referred to in the preceding paragraph imposes the express identification, in the
constitutive documents and in any publication of a promotional nature, of the
issuers in which it is intended to invest more than 35% of the global net value of the
collective investment body in securities, as well as the inclusion of
a mention that evidenced the special nature of its investment policy.
13-The entities included in the same group for the purpose of consolidation of accounts, in the
acquition of Directive No 2013 /34/UE of the European Parliament and of the Council, of 26 of
June 2013, concerning the annual financial statements, to the demonstrations
consolidated financial and the related reports of certain forms of companies, which
aments Directive No 2006 /43/CE of the European Parliament and of the Council and repeals them
Directives n. ºs 78 /660/CEE and 83 /349/CEE of the Council, or in compliance with
internationally recognized accounting rules, are considered to be a
single entity for the purpose of calculating the limits predicted previous figures.
14-A collective investment body in securities may invest up to 20%
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of its global net worth in securities and market instruments
monetary issued by entities that find themselves in a group relationship.
15-A CMVM sends to the European Securities and Markets Authority and the
European Commission a list of the categories of obligations referred to in paragraph 6, as well as
of the categories of issuers which, pursuant to the law and the provisions relating to
supervision, are authorised to issue bonds that meet the criteria
set out in this article, together as a note specifying the status
of the guarantees provided.
16-In the case of investment in derivative financial instruments based on an index,
the values that integrate it do not count for the purposes of the limits referred to in the present
article.
Article 177.
Limits by collective investment body
1-A collective investment body in securities cannot invest any more
of 20% of its overall net worth in units of participation of a single body
of collective investment provided for in the paragraph c ) of Article 172 (1).
2-A collective investment body in securities cannot invest, in the
total, more than 30% of its overall net worth in units of participation of others
collective investment bodies, established or not in national territory,
provided for in sub-paragraph ii) of the paragraph c ) of Article 172 (1).
3-When a collective investment body in securities detains
units of participation of collective investment bodies, the assets that
they integrate the latter do not count for the purposes of the limits per entity referred to in the
previous article.
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Article 178.
Collective investment body limits in securities of indexes
1-A collective investment body in securities may invest up to the
maximum of 20% of its overall net worth in stocks or representative instruments
of debt issued by the same entity, when the goal of its policy of
investments for the reproduction of the composition of a particular stock index or
of representative debt instruments, recognized by the CMVM.
2-Understand for reproduction of the composition of a particular stock index or of
representative instruments of debt the reproduction of the composition of the assets
underlying the index, including the use of derivatives or other techniques and
management instruments referred to in Article 173.
3-The financial indices mentioned in paragraph 1:
a) They have a sufficiently diversified composition respecting the predicted limits
in this Article, without prejudice to the provisions of the preceding paragraph;
b) They represent a suitable reference standard in relation to the markets to which
say respect, understood these as indexes whose supplier uses a
recognised methodology, which, in general, does not result in the exclusion of a
important issuer of the markets to which they concern; and
c) Are provided by independent entity of the collective investment body
in securities that reproduce the indexes.
4-A point c ) of the preceding paragraph does not exclude the situation in which the supplier of the index and the
collective investment body in securities are part of the same
economic group, provided that there are effective provisions for the management of conflicts of
interest.
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5-The limit referred to in paragraph 1 shall be raised to 35%, only in relation to a single entity,
if this is justified by excecional conditions verified in the markets
regulated in which certain securities or instruments are prevalent
of the money market.
SECTION II
Main and type-type structures (master-feeder)
SUBSECTION I
General provisions
Article 179.
Scope
1-A collective investment body in food-type securities
( feeder ) is a collective investment body in securities or a
autonomous heritage compartment of this which, notwithstanding the provisions of the point 1º )
of the subparagraph i) of the paragraph aa ) of Article 2 (1), in Article 172, para. c) of paragraph 1 of the
article 175, and in Articles 176 and 177, has been authorized to invest at least 85%
of the overall net value in units of participation of another investment body
collective in securities or autonomous heritage compartment, the body
of collective investment in core-type securities ( master ).
2-The collective investment body in food-type securities may
hold up to 15% of the overall net value in one or more of the following:
a) Liquid financial instruments;
b) Derivative financial instruments, which can only be used for the purposes of
coverage, under the terms of the point and ) of Article 172 (1), of paragraphs 2, 3 and 5 a to 8 of the
Article 173 and Article 176;
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c) Movable or immovable property indispensable to the direct pursuit of its activities,
case the collective investment body in securities of type
food is a collective investment body in a society-shaped way.
3-For the purpose of compliance with paragraphs 5 a to 8 of Article 173 and of Article 176, the
collective investment body in food-type securities must
calculate your global exposure in relation to derivative financial instruments,
combining its own direct exhibition, under the terms of the ( b ) of paragraph 2, with:
a) The effective exposition of the collective investment body in securities
of main type to derivative financial instruments, proportionally to the
investment of the collective investment body in securities of
food in the main type; or
b) The maximum exposure limit of the collective investment body in values
major type securities to derivative financial instruments provided for in the
constitutive documents, proportionally to the investment of the body of
collective investment in food-type securities in the type
main.
4-A collective investment body in core-type securities is a
body or an autonomous heritage compartment that:
a) Have among your participants at least one investment body
collective in food-type securities;
b) Do not be a collective investment body in securities of type
food;
c) Do not be a holder of units of participation of an investment body
collective in food-type securities.
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5-It is not applicable to the collective investment body in securities of type
main:
a) The obligation to obtain capital from the public, and may however do so,
case has at least two collective investment bodies in values
food-type securities as participants;
b) Section III of Chapter II of Title III and (a) b ) of Article 242 (1), case
do not get capital from the public in a Member State other than that in
which is authorized, but there it posits one or more investment bodies
collective in food-type securities.
6-The alternative type and food-type alternative investment bodies are
applicable the constant regime of this section with the adaptations provided for in
regulation of CMVM.
Article 180.
Procedure of authorisation
1-The collective investment body in food-type securities must
be informed, within 15 days of the submission of the full application, of the
decision of the CMVM to authorize or dismiss the investment of the body of
collective investment in food-type securities in the main type.
2-A CMVM authorizes investment in case the collective investment body in
food-type securities, its depositary and its auditor, as well as the
collective investment body in core-type securities, comply
all the requirements set out in this section.
3-The application for authorisation shall be instructed with the following documents:
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a) The constitutive documents of the collective investment body in values
food-type and of the main type securities;
b) The contract between the collective investment body in securities of
type food and the main type or the standards of internal conduct;
c) In case of conversion of collective investment body into values
already existing securities, the information to be provided to the participants referred to in
n Article 195 (1);
d) If the collective investment body in core-type securities and
that of food-type have different depositories, the contract of exchange of
information among the depositary respects;
e) If the collective investment body in core-type securities and
the type food type have different auditors, the contract of exchange of
information among the auditors ' respective respects.
4-Should the collective investment body in core-type securities not
be authorised in Portugal, the collective investment body in values
food-type securities must also provide the CMVM with a certificate
issued by the competent authorities of the main type body, attesting that the
even is a collective investment body in securities, or a
autonomous heritage compartment of this, which satisfies the conditions set out in the
points b ) and c ) of paragraph 4 of the previous article.
5-Documents must be provided by the collective investment body at
securities of type food in Portuguese, in a language of current use in
international financial sphere or in another language authorized by the CMVM.
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Article 181.
Provision of information and vicissitudes of the collective investment body in
securities
1-The collective investment body in core-type securities provides
to type food, on the basis of the contract provided for in paragraph b ) of the Article 3 (3)
previous, all documents and information required for the latter to comply
the requirements set out in this General Regime.
2-The collective investment body in food-type securities is
prevented from investing beyond the limits set out in Article 177 (1) in units
of participation of the main type up to the entry into force of the contract provided for in
point ( b ) of paragraph 3 of the previous article.
3-The contract concluded between the collective investment body in values
main type securities and the type of food type shall be made available, upon
request and free of charge, to all participants.
4-Case the collective investment body in prime type securities and the
of food type are managed by the same entity responsible for the management, the
contract can be replaced by internal standards of conduct that guarantee the
compliance with the requirements required in this article.
5-The collective investment body in core-type securities and the de
food type take appropriate measures to coordinate the date of calculation and of
publication of the net worth of the respective units of participation, in order to avoid
situations of arbitration.
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6-Case the collective investment body in core-type securities
suspending provisionally the ransom or underwriting of its units of participation,
on his or her initiative, or at the request of the appropriate competent authority, each of its
collective investment bodies in food-type securities has the
right to suspend the same operations, during the same period.
7-In case of liquidation of a collective investment body in values
main type securities, those of authorized food in Portugal are also
liquidated, save if the CMVM authorizes:
a) The investment of at least 85% of the global net value of the body of
collective investment in food-type securities in units of
participation of another of the main type; or
b) The amendment of the constitutive documents in such a way as to allow the conversion of the
collective investment body in food-type securities
in another type of collective investment body in securities.
8-Without prejudice to the regime provided for in Articles 191 and 192, an organism of
collective investment in core-type securities can only be liquidated
at least three months after having informed all of its participants and the CMVM of the
respects decision.
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9-In the event of a merger of a collective investment body in securities of
main type with another collective investment body in securities or
of their spin-off in two or more collective investment bodies in values
securities, those of type food authorized in Portugal are settled, save if the
CMVM authorize that these:
a) Maintain your status as a collective investment body in
securities of type food of the main type or other body of
collective investment in securities resulting from the merger or spin-off of the de
main type;
b) They invist at least 85% of the overall net value in units of participation of
another collective investment body in prime type securities
not resulting from the merger or fission; or
c) Amend the constitutive documents in such a way as to convert them into organisms from
collective investment in securities that is not one of a food type.
10-A merger and the spin-off of a collective investment body in securities of
main type only produce effects if the collective investment body in
securities has provided to all its participants and to CMVM, at least
60 days prior to the proposed date for the production of effects, the information referred to in
article 36 or equivalent information.
11-Except in the situation referred to in paragraph a ) of paragraph 9, the collective investment body
in main type securities authorizes those of food type to be reacquired or
reimburse all respects units of participation prior to the merger or spin-off of the
collective investment body in core type securities to produce
effects.
12-A CMVM decides the applications for the authorizations provided for in paragraphs 7 and 9 on the deadline
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of 15 days.
Article 182.
Content of the contract between the collective investment body in values
main type securities and the food type
1-The contract between the collective investment body in securities of type
main and the food type includes:
a) The form and the moment in which the leading type body provides the body
of type food an exemplar of its constitutive documents or of
possible changes to them;
b) The form and the moment in which the main type body informs the body
of type feed on the eventual subcontracting of management functions of
investments and risk management to third-party entities;
c) If necessary, the form and the moment in which the main type body
makes available to the food-type body its operational documents
internal, such as your risk management process and your reports on the
fulfillment control system;
d) The information that the main type body communicates to the body of
feeding on any infractions committed by the type body
principal in relation to the legal provisions, constitutive documents or the
contract between the main type body and the food type body,
as well as the form and time frame in which such information is communicated;
e) If the food-type body uses derivative financial instruments to
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purposes of cover, the shape and the time at which the main type body
provides the food-type organism with information about its effective
exposure to the derivative financial instruments, so as to enable the
food type body to calculate its own global exposure;
f) A statement by the leading type body by committing to inform the
food type body on any other contracts of exchange for
information entered into with third-party entities and, if necessary, on the form and the
moment in which the main type body makes such information available to the
food type organism.
2-In relation to the investment of the collective investment body in values
food securities, the contract includes:
a) A statement indicating the categories of units of participation of the body
of main type that are available for investment by the body
of type food;
b) The charges and expenses to be borne by the food type body and details
on possible discounts or set-backs by the main type body;
c) If necessary, the terms in which any initial or subsequent transfer of
assets in kind can be carried out by the food-type organism to the
main type organism.
3-In relation to the general rules of negotiation, the contract between the body of
collective investment in core-type securities and the food type
includes:
a) Coordination of the periodicity and timing of the calculation of the overall net value and the
publication of the values of the units of participation;
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b) Coordination of the transmission of trading orders by the type body
food, including, if applicable, the role of financial intermediaries of
interconnection or any other third entity;
c) If applicable, any mechanisms necessary to take into account the fact of an or
both the collective investment bodies in securities if
find admitted or traded on regulated market or system of
multilateral trading;
d) If necessary, other appropriate measures to ensure compliance with the
requirements set out in paragraph 5 of the preceding article;
e) The basis of conversion of trading orders, in cases where the units of
participation of the food type body and of the main type are
denominated in different currencies;
f) The settlement cycles and payment information for the purchase or
subscribing and the rescue of units of participation of the main type body,
including, if they have been agreed upon between the parties, the terms in which the body
of main type can settle the rescue requests through the transfer of
assets in kind for the food-type body;
g) The procedures designed to ensure a proper handling of applications for
clarification and complaints from the participants;
h) In cases in which the constitutive documents of the main type body
grant certain rights or powers with respect to the participants, and if the
primary type body choose to limit or waive the exercise of all or
of any of these rights and powers with respect to the body of type
food, a statement of the terms of such waiver or limitation.
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4-In relation to the situations susceptible to affect the general rules of negotiation, the contract
between the collective investment body in core-type securities and the
of type feed, includes:
a) The form and the time at which any of the bodies must notify the
temporary suspension and resumption of the rescue or underwriting of its units of
participation;
b) The mechanisms for the notification and resolution of errors of valorisation of the
main type organism.
5-In relation to the rules applicable to the audit report, the contract between the body
of collective investment in core-type securities and the like
food, includes:
a) In case the food type body and the main type body have the
same year accounting year, the coordination of the drafting of the respects reports and
accounts;
b) In case the food type body and the main type body do not have
the same year accounting year, the mechanisms applicable for the body of
type food can get from the main type organism the information
necessary for the punctual elaboration of their reports and accounts, so as
ensure that the auditor of the main type body is in a condition of
submit a report by the date of closing of the accounting year of the body
of type feed.
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6-The contract between the collective investment body in securities of type
main and the type food type includes still the shape and the time when:
a) The main type body communicates proposed changes to its
constitutive documents, if they apply other rules, other than the rules of
dissemination to the participants, established in the respects documents
constitutive;
b) The main type body communicates situations of settlement, merger or spin-off or
proposal in this direction;
c) Any of the communal bodies that left or will fail to comply with the
conditions that qualify it as a food type organism or as
main type organism;
d) Any of the bodies communicates their intention to replace their entity
gestures, depositary, auditor or any other third party mandated for functions of
management of investments or risks;
e) Other amendments shall be reported to the rules in force that the body of
main type tencione make available.
7-In relation to the choice of jurisdiction and competent venue, the investment body
collective in food type securities and the main type should
recognize that:
a) In case the food type body and the main type body are
authorized in the same Member State, the contract shall be subject to its legislation and the
your courts are the only competent venue;
b) Should they be authorized in different Member States, the contract shall be subject to
legislation from one of them and the courts of the Member State whose legislation is the
applicable are the only competent venue.
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Article 183.
Rules of internal conduct and conflict of interest
1-Case the collective investment body in prime type securities and the
of food type are managed by the same entity, the contract referred to in the article
previous may be replaced by internal rules of conduct that guarantee the
compliance with the requirements set out in paragraphs 2 a to 5 of the previous article, with the exception
of the paragraph g) of paragraph 3 of that same article.
2-The rules referred to in the preceding paragraph include specific measures of resolution of the
conflicts of interest that may arise between the collective investment body
in food-type securities and the main type or between the body
of food type and other participant in the main type organism, whenever the
measures implemented by the entity responsible for the management with a view to fulfilling the
requirements for conflicts of interest are not sufficient to solve such
conflicts.
Article 184.
Mandatory information and advertising
1-In addition to the information provided for in Schedule A of Annex II to the present General Regime, which
of it is an integral part, the prospeit of the collective investment body in values
food-type securities includes the following information:
a) A statement that the body is a collective investment body in
food-type securities of a particular type organism of a main type
and that, as such, permanently invests 85% or more of the overall net value in
units of participation of that main type body;
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b) The goal and policy of investments, including the risk profile, and an indication
which needs to if the performances of the collective investment body in values
food-type securities and of the main type are identical, or in which
measure and why reasons diverge, including a description of the rest
investments effectuated;
c) A brief description of the body of collective investment in securities
of main type, your organisation and your scope and policy of investments,
including the risk profile and an indication of how the prospeetus can be obtained from the
main type organism;
d) A summary of the contract concluded between the collective investment body in
food-type securities and the main type or, where applicable,
of the internal rules of conduct that replace it;
e) The form by which the participants can obtain additional information about the
collective investment body in core type securities and the
contract concluded between the food type body and the main type;
f) A description of all remunerations or setbacks, arising from the
investment in units of collective investment body share
in securities of a principal type, the post or the benefit of the type
food, as well as the total charges of the food type body and the
of main type;
g) A description of the tax incidences for the collective investment body
in food-type securities, in relation to the investment of this in the
main type organism.
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2-The report and annual accounts of the collective investment body in values
food-type securities includes, in addition to the information provided for in the scheme B of the
Annex II to the present General Regime, which of it is an integral part, a demonstration
of the total charges of the collective investment body in securities of
food type and of the main type.
3-The annual and semiannual reports and accounts of the collective investment body in
food-type securities shall state the way in which the reports and
annual and semi-annual accounts of the main type organism can be obtained.
4-Collective investment bodies in food-type securities
authorized in Portugal send to the CMVM the prospearship and its eventual changes, the
document with fundamental information aimed at investors and their eventual
changes, and the annual and semiannual reports and accounts of the main type body.
5-Collective investment bodies in food-type securities
shall state, in all advertising actions, the main type body in which
invest permanently 85% or more of the global net value.
6-It is transmitted by the collective investment body in securities of type
food to investors, at the request of these and free of charge, a paper copy of the
prospeit and of the annual and semiannual reports and accounts of the main type organism.
SUBSECTION II
Depositaries and auditors of collective investment body in values
master type and food type securities
Article 185.
Depositories
1-The depositaries of the collective investment body in securities of type
main and of the food type, if they are different, they celebrate a contract of exchange
of information intended to ensure the fulfillment of the duties of both.
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2-Until the beginning of the production of effects of the said contract, it is vindicated to the body of
collective investment in securities of type fuelling the investment in
units of participation of the main type body.
3-In case they comply with the requirements set out in this section, neither the depositary of the
collective investment body in core-type securities, nor the
food type depositary can be considered in violation of any
rules that restrict the disclosure of information or relating to data protection
imposed by contract or legal, regulatory or administrative provision.
4-A entity responsible for the management of the collective investment body in values
Food-type securities communicates to the depositary respects all information
on the main type body that are necessary for the fulfilment of the
duties of this.
5-The depository of the collective investment body in securities of type
principal authorised in Portugal immediately informs CMVM, the responsible entity
by the management of the food type body and the depository of this of any
lofted irregularities relating to the main type body which it considers
have negative repercussions on the food type.
6-The irregularities referred to in the preceding paragraph, deteed by the depositary of the
collective investment body in core-type securities during the
performance of their functions and which may have negative repercussions on the body
type of food, include in particular:
a) Errors in the calculation of the overall net value of the main type organism;
b) Errors in the negotiation or settlement of the purchase, underwriting or rescue of the units
of the participation of the main type body run by the type body
food;
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c) Errors in the payment or capitalization of the income resulting from the body of
master type or in the calculation of the retention of any consex tax;
d) Failure to meet the objectives, policies or investment strategies of the
principal type body, as set out in the respects documents
constitutive;
e) Failure to default on investment and indebtedness limits set out in the
national legislation or in the constitutive documents.
7-The contract for the exchange of information entered into between the depositary of the body of
collective investment in core securities and the depository of the body of
feed includes the following elements:
a) The identification of the documents and categories of information that must be
regularly shared between both depositories and an indication as to whether that
information or documents are automatically provided by a depositary to the
another or made available on request;
b) The form and timing, including any applicable time limits, where the information
shall be transmitted by the depositary of the main type body to the depositary
of the food type body;
c) The coordination of the actions of both depositories, in relation to the issues
operational, including:
i) The procedure for calculating the overall net value of each body of
collective investment in securities, as well as any measure
suitable to avoid attempts to advance market anticipation;
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ii) The handling of the instructions of the collective investment body in
food-type securities referring to the purchase, underwriting, rescue
of units of participation of the main type body and the settlement
of these transactions, as well as any mechanisms for the transfer of
assets in kind;
d) The coordination of closing procedures and presentation of accounts;
e) The information that the depositary of the collective investment body in
principal-type securities must communicate to the depositary of the body
of type food in respect of any infractions committed by the type
principal in relation to the legal provisions and constitutive documents, thus
as the form and time frame in which such information is to be communicated;
f) The procedure for handling additional requests for assistance of a
depositary to the other;
g) The identification of the particular contingent situations that must be the object of
notification of a depository to the other, as well as the form and time frame for the
effect.
8-In relation to the competent jurisdiction and venue, the following requirements shall be observed:
a) In cases in which the body of collective investment in securities of
type food and the main type have entered into a contract in
compliance with Article 182 (7), the law of the Member State applicable to that
contract is also applicable to the exchange of information agreement between both
custodians, and shall recognize themselves as sole competent venue the courts
of that Member State;
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b) In cases where the contract between the collective investment body in
food type securities and the main type has been replaced
by internal rules of conduct, the contract for the exchange of information between the
depositories of the main type body and the food type body
it shall establish that the applicable law is, in the alternative, that of the Member State in which the
food type body is established or that of the Member State
in which the main type body is established, owing
recognize themselves as the sole competent venue the courts of the Member State whose
law is the applicable one.
Article 186.
Auditors
1-The auditors of the collective investment body in securities of type
main and the food type organism, if they are different, celebrate a
contract for the exchange of information intended to ensure compliance with the duties of
both.
2-Until the beginning of the production of effects of the said contract, it is vindicated to the body of
collective investment in securities of type fuelling the investment in
units of participation of the main type body.
3-The auditor of the collective investment body in securities of type
feed takes into account, in its report, the report of the auditor of the body type body
main.
4-Case the collective investment body in food-type securities and
the principal type do not have the same year accounting year, the auditor of the body of
main type presents a report by reference to the end of the exercise adopted by the
food type organism.
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5-The auditor of the collective investment body in securities of type
food should, inter alia, mention in its report any irregularities
revealed in the auditor's report of the main type body, as well as the
respects repercussions on the food-type organism.
6-In case they comply with the requirements set out in this section, neither the auditor of the
collective investment body in core-type securities, nor the
auditor of the food type body may be considered in violation of
any rules that restrict the disclosure of information or relating to the protection of
data imposed by contract or legal, regulatory or administrative provision.
7-The exchange contract of information includes:
a) The identification of the documents and categories of information that must be
regularly shared between both auditors;
b) Clarification on whether or not the information or documents referred to in the preceding paragraph
shall be automatically provided by an auditor to the other or made available
on request;
c) The form and timing, including any applicable time limits, where the information
shall be transmitted by the auditor of the main type body to the auditor of the
food type body;
d) The coordination of the actions of both auditors in the closing procedures and
presentation of accounts of the respected body of collective investment in values
securities;
e) The identification of the issues to be dealt with as irregularities revealed in the report of the
auditor of the main type body;
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f) The form and timing of which additional applications must be addressed
assistance from an auditor to the other, including a request for communication from
supplementary information on the irregularities disclosed in the report of the
auditor of the main type body.
8-The contract for the exchange of information includes still provisions on the preparation of the
audit reports, as well as the form and timing of the body's auditor
of collective investment in core-type securities must present their
audit report and the respect projects, to the auditor of the type body
food.
9-Case the collective investment body in food-type securities and
the master type do not use the same closing date of accounts, the exchange contract of
information shall include the form and time at which the auditor of the body type body
principal shall submit the report required by paragraph 4, and respect projects, to the auditor
of the food type body.
10-In relation to the competent jurisdiction and venue of the contract for the exchange of information, it applies-
if, with due adaptations, the provisions of Article 182 (7).
SUBSECTION III
Surveillance
Article 187.
Surveillance of the collective investment body in securities of type
main
1-A entity responsible for the management of the collective investment body in values
food-type securities controls the activity of the main type organism.
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2-For the effect of the preceding paragraph, the entity responsible for the management of the body of
collective investment in food-type securities can be based on the
information and documents received from the entity responsible for the management of the body
of a main type or, where applicable, of the depositary or the auditor, save when it has
grounds for doubting your accuracy.
Article 188.
Imputation of pecuniary benefits
1-The commissions or other pecuniary benefits paid to the entity responsible for the management
of the collective investment body in food-type securities in the
context of an investment in units of participation of the type body
main revert to the food type organism.
2-A entity responsible for the management of the collective investment body in values
principal-type securities do not charge underwriting or rescue commissions
concerning the investment of the food-type body in its units of
participation.
Article 189.
Provision of information
1-A entity responsible for the management of the collective investment body in values
principal type securities authorized in Portugal immediately informs CMVM of the
identity of each of the food-type organisms that invest in their
units of participation.
2-Case a collective investment body in securities of type
food established in another Member State unseen in a body of type
main established in Portugal, CMVM immediately informs the authority
competent from the Member State of origin of the food-type body on that
fact.
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3-It is up to the entity responsible for the management of the collective investment body in
main type securities ensure that the entity responsible for the management of the
food type body, as well as the appropriate competent authority, the
depositary and the auditor of the food-type body in a timely manner
all the information required pursuant to this General Regime, from the other
applicable legislation and constitutive documents.
Article 190.
Provision of information by the competent authorities
1-Case the collective investment body in food-type securities and
the respected main type organism are both authorized in Portugal, the CMVM
it immediately informs the food-type body of any decision, measured or
observation per se taken concerning the non-compliance of the conditions set out in the
this section, as well as on any wrongdoing communicated by the auditor,
relating to the entity responsible for the management of the main type body,
to the depositary or the auditor.
2-Case a collective investment body in securities of type
food established in another Member State unseen in a body of type
main established in Portugal, CMVM immediately informs the authority
competent from the Member State of origin of the food body on any
decision, measure or observation per se per se concerning non-compliance with the
conditions set out in this section, as well as on any wrongdoing
communicated by the auditor, which relate to the entity responsible for the management of the
principal type body, the depositary or the auditor.
3-Case for CMVM, as a competent authority of investment body
collective in food-type securities, receive information from nature
referred to in the preceding paragraph relating to the main type body established in another
Member State, hereby informs, immediately the food-type body.
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SUBSECTION IV
Vicissitudes of the collective investment body in securities of type
main
Article 191.
Liquidation of the collective investment body in securities of type
main
1-Within the maximum period of two months from the date on which the entity responsible for
management of the collective investment body in core securities informe
the entity responsible for the management of the food body of its decision to
settlement, the entity responsible for the management of the food body sends to the
CMVM the following elements:
a) Should you intend to invest at least 85% of the overall net worth in units of
participation of another main type body:
i) The application for the authorization of such investment;
ii) The application for the authorisation of the proposed amendments to the documents
constitutive;
iii) The remaining documents required in accordance with Article 180;
b) Should you intend to convert yourself to another type of collective investment body in
securities, the application for the authorization of the proposed amendments to the
constitutive documents;
c) Should it intend to be liquidated, a communication of that intention.
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2-Without prejudice to the provisions of the preceding paragraph, if the entity responsible for the management
of the collective investment body in core-type securities has
informed the entity responsible for the management of the food-type body on the
your settlement decision with an advance of more than five months in relation to the
date of production of the respects effects, the entity responsible for the management of the
food type body may refer to the CMVM for its application or communication,
up to three months before that date.
3-A entity responsible for the management of the collective investment body in values
Food-type securities communicates immediately to your participants in your
intention to liquidation.
Article 192.
Authorization of liquidation
1-A CMVM notifies the entity responsible for the management of the investment body
collective in securities of type food of the decision on the requests for
authorization by this submitted, within 15 days of the delivery of the
elements referred to in points a) or b ) of paragraph 1 of the preceding Article, the
provisions of Article 21 (2) and (a) (21) with the necessary adaptations.
2-A entity responsible for the management of the collective investment body in values
food-type securities informs the entity responsible for the management of the
main type body as soon as it receives the approval of the CMVM under the terms of the
previous number.
3-A entity responsible for the management of the collective investment body in values
food-type securities take all necessary measures to comply with the
requirements of Article 195 as soon as possible after the concession, by the CMVM, of the
necessary authorisations under the paragraph a) n. 1 of the previous article.
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4-In case the payment of the amounts regarding the settlement of the investment body
collective in core-type securities is performed before the date on which the
entity responsible for the management of the food-type organism intends to start the
invest in a collective investment body in different securities, or
in accordance with its new objectives and investment policy, the CMVM shall
grant the permit, upon the following conditions:
a) The entity responsible for the management of the food-type body receives the
amounts referring to the settlement:
i) In cash; or
ii) Partially or fully, by means of a transfer in kind, whenever the
entity responsible for the management of the food-type body so the
understand and that the contract between the entities responsible for the management of the
food type body and the main type body to allow or
the rules of internal conduct and the decision to liquidate it permit;
b) Any cash held or received in accordance with this paragraph
can only be reinvested for the purpose of effective cash management before the date on
that the entity responsible for the management of the food-type body begins to
invest in another main type body or in compliance with your
new goals and investment policy.
5-Case apply to sub-paragraph ii ) of the paragraph a ) of the previous number, the body of
collective investment in food-type securities can, at all times,
convert to cash any part of the assets transferred in kind.
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Article 193.
Merger or fission of the collective investment body in securities of
main type
1-Within the maximum period of one month from the date on which the entity responsible for
management of the collective investment body in core securities informe
the entity responsible for the management of the food-type body of the information
provided for in Article 181 (10), the entity responsible for the management of the body of
type feed sends the CMVM the following elements:
a) Should you intend to continue to be a food type body of the same
main type organism:
i) The application for the authorization of that intention;
ii) If applicable, the application for the authorisation of the proposed amendments to the
constitutive documents;
b) Case intending to become the food type body of another type organism
principal resulting from the merger or spin-off proposed by the entity responsible for the
management of the main type body or intend to invest at least 85% of the
global net worth in units of participation of another type body
principal not resulting from this merger or fission:
i) The application for the authorization of such investment;
ii) The application for the authorisation of the proposed amendments to the documents
constitutive;
iii) The remaining documents required under Article 180 (4) and (5).
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c) Should you intend to convert yourself to another type of collective investment body in
securities, the application for the approval of the proposed amendments to the
constitutive documents;
d) In case the food-type body intends to be liquidated, a communication
of this intention.
2-For the purposes of applying the points a ) and b ) of paragraph 1, an investment body
collective in food-type securities continues to be a body of
type feeding of the same main type organism if:
a) The main type body is the incorporated body in a melting project;
b) The main type organism does not suffer, while one of the resulting organisms
of the spinoff, significant changes, considered as such by the CMVM.
3-Equally for the purposes of applying the points a ) and b ) of paragraph 1, an organism of
collective investment in food-type securities becomes body of
type feeding of another main type organism resulting from the merger or spin-off of the
main type organism if:
a) The main type body is the incorporated body and, due to the process
of fusion, the food-type organism becomes a participant of the organism
embedding;
b) The food-type organism becomes a participant in one of the organisms
resulting from the spin-off that is significantly different from the type organism
main, considered as such by the CMVM.
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4-Without prejudice to the provisions of paragraph 1, if the entity responsible for the management of the
collective investment body in core-type securities has
sent to the entity responsible for the management of the food-type body to
information referred to in Article 181 or equivalent information, in advance
greater than four months in relation to the respect date of production of effects, the entity
responsible for the management of the food-type body can refer to the CMVM the
application or communication up to three months prior to the effective date of merger or spin-off of the
main type organism.
5-A entity responsible for the management of the collective investment body in values
Food-type securities communicates immediately to its participants and to the
entity responsible for the management of the main type body over its intention to
liquidation.
Article 194.
Authorization of merger or division
1-A CMVM notifies the entity responsible for the management of the investment body
collective in securities of type food of the decision on the requests for
authorization by this submitted, within 15 days of the delivery of all the
documents referred to in points a ) a c ) of paragraph 1 of the preceding Article, the
provisions of paragraph 2 and (2) a ) of Article 21 (3), with the necessary adaptations.
2-A entity responsible for the management of the collective investment body in values
food-type securities informs the entity responsible for the management of the
main type body as soon as it receives the authorisation of the CMVM under the terms of the
previous number.
3-A entity responsible for the management of the collective investment body in values
food-type securities take the necessary measures to comply with the requirements
provided for in the following article, after the recetion of the necessary authorisations under the
point ( b ) of paragraph 1 of the previous article.
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4-In cases referred to in points b ) and c ) of paragraph 1 of the previous article, the responsible entity
by the management of the collective investment body in securities of type
food authorised in Portugal exercises the right to ask for the rescue of the units of
participation in the main type body whenever CMVM has not granted
the authorizations required right up to the working day preceding the last day on which entity
responsible for the management of the food-type organism can request the rescue of the
units of participation that it holds in the main type body before the merger or
spat to produce effects.
5-A entity responsible for the management of the collective investment body in values
food-type securities shall also exercise the right referred to in the number
previous in such a way as to ensure that it is not affected the right of the participants to ask for the
rescue of its units of participation in the food-type body in
compliance with paragraph d ) of paragraph 1 of the following article.
6-Before exercising the right referred to in paragraph 4, the entity responsible for the management of the
collective investment body in food-type securities
considers alternative solutions that can contribute to avoiding or reducing costs
of trading or other negative repercussions for the participants.
7-Whenever the entity responsible for the management of the collective investment body
in food-type securities ask for the rescue of the units of participation
in the main type body, it is made available to you:
a) The amount regarding the cash bailout;
b) The total or part of the amount regarding the rescue through a transfer in
species, whenever the entity responsible for the management of the type body
food so to understand and that the contract between the entities responsible for the
management of the food type body and the main type body the
allow.
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8-Case the entity responsible for the management of the collective investment body in
food-type securities receive transfers in kind, may, in
any time, convert to cash any part of the transferred assets.
9-A CMVM only grants the requested authorization under condition that any
cash held or received in accordance with paragraph 7 by the body of
collective investment in food-type securities can only be
reinvested for the purposes of its ordinary and efficient management, prior to the date on which the
even start investing in another main type body, or in compliance with
your new goals and investment policy.
Article 195.
Conversion of collective investment body into securities and
change of main type organism
1-Case a collective investment body in securities in activity if
translates into collective investment body into securities of type
food or case if you check a change to the main type organism in which
that unseen, the food type organism provides all participants with
following information:
a) A statement attests to the authorisation by the CMVM of the investment of that
body in units of participation of the main type body concerned;
b) The document with fundamental information aimed at relative investors
both to the food type body and to the main type body;
c) The date on which the food-type body begins to invest in the body of
main type or, if it has already invested in the main type body, the date on which
your investment exceeds the limit set out in Article 177 (1);
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d) A statement that the participants have the right to ask for the rescue of their
units of participation, within 30 days, without any charges beyond
of those retained by the body to cover the costs of disinvestment.
2-The right to ask for the rescue of your units of participation, without any charges
in addition to those retained by the collective investment body in securities
of food type to cover the costs of disinvestment can be exercised to leave
of the moment the food-type organism presents the information
referred to in the preceding paragraph.
3-The information provided for in this Article shall be provided at least 30 days before the
date referred to in para. c ) of paragraph 1.
4-In case of commercialization in Portugal of collective investment body in
securities of type food authorised in another Member State as
information referred to in paragraph 1 shall be provided in Portuguese or in another language
accepted by the CMVM, and the translation shall be effected under the responsibility of the
food type organism and faithfully reflect the content of the original.
5-The collective investment body in food-type securities no
may invest in units of participation of the collective investment body in
principal-type securities, in addition to the applicable limit in accordance with paragraph 1
of Art. 177, before the end of the 30-day period referred to in paragraph 3.
6-The information provided for in paragraph 1 shall be provided in accordance with the provisions of paragraphs 3 and
4 of Article 37.
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SECTION III
Cross-border marketing
SUBSECTION I
Commercialization in Portugal of collective investment bodies in values
securities of the European Union
Article 196.
Conditions of marketing in Portugal
1-It is a condition of marketing in Portugal of units of participation of a
collective investment body in securities authorized in another state-
Member that the CMVM receives, from the competent authority of the Member State of
origin, the following elements:
a) Letter of notification, drawn up pursuant to the provisions of the provisions of Regulation (EU) No
584/2010 of the European Commission, of July 1, containing the particular conditions
of commercialization in Portugal of the collective investment body in values
securities including, if applicable, information relating to the categories of units
of participation;
b) Annexes to the letter of notification, specifically the updated versions of the
following documents:
i) Constitutive documents;
ii) If applicable, the last annual report and any semiannual reports;
c) Information on how the CMVM can access, by means of an electronicity, to the
documents referred to in the previous paragraphs;
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d) Certificate issued by the competent authority of the Member State of origin,
obeying the provisions of Commission Regulation (EU) No 584/2010 of the Commission
European, of July 1, 2010, attesting that the investment body
collective in securities brings together the conditions set out in the Directive
n. 2009 /65/CE of the European Parliament and of the Council of July 13, 2009.
2-Whenever the units of participation of the collective investment body in
securities to be marketed by the responsible entity responsible for the
management, the letter of notification should expressly mention that.
3-A letter of notification, as well as the certificate, are provided in Portuguese, English or
in another language approved by the CMVM.
Article 197.
Changes to the documents referred to in the notification procedure
1-The entities responsible for the management of collective investment body in values
authorized securities in another Member State whose units of participation are
marketed in Portugal should immediately notify the CMVM of any
changes to the documents referred to in para. b) of paragraph 1 of the preceding Article, indicating the
how to access, by electronic way, to the updated versions.
2-In the event of a change in the information relating to the particular conditions of
marketing communicated in the letter of notification or amendment of the categories of
participation units to be commercialised, the entity responsible for the management of the
collective investment body in securities communicates such changes by
written to the CMVM before these produced effects.
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Article 198.
Information on legal framework applicable to marketing in
Portugal
The CMVM releases on the respective website on the Internet, also in translated version for English,
complete, clear and up-to-date information on the legal, regulatory and
administrative applicable to the marketing in Portugal of units of participation of
collective investment bodies in securities established in another State-
Member.
Article 199.
Conditions for payment to participants in Portugal
The entities responsible for the management of collective investment bodies in values
authorized securities in another Member State whose units of participation are
commercialized in Portugal adopt the necessary measures to be secured in territory
national the payments to the participants, specifically those relating to operations of
rescue and reimbursement of the units of participation and the dissemination of information legally
demanded.
Article 200.
Equal treatment of investors
1-The entities responsible for the management of collective investment bodies in
securities that trade in their units of participation in Portugal
disseminate on national territory the information and documents that should be disclosed
in the Member State where the body was authorised.
2-The information and documents referred to in the preceding paragraph shall be disclosed in the
terms applicable to the national collective investment bodies, in Portuguese,
english or in another language approved by the CMVM, with the following specifics:
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a) The document with the fundamental information aimed at investors, in
portuguese or in another language approved by the CMVM;
b) The prospetto and the annual and half-yearly reports and accounts, in Portuguese, English or
in another language approved by the CMVM.
3-A The translation of the information and documents to which the preceding paragraph is referred, to which
should faithfully reflect the respect content, and be effected under the responsibility of the
entities responsible for the management of the collective investment body in values
securities.
4-The requirements set out in the preceding paragraphs are also applicable to the possible
changes to the information and documents referred to therein.
5-A frequency of the publication of the subscription and rescue prices of the units of
participation of collective investment bodies in securities obeys the
legal, regulatory and administrative provisions of the Member State-Member of
origin.
Article 201.
Denomination of collective investment bodies in securities of the
European Union
For the purpose of the exercise of its activities in Portugal, the investment bodies
collective in unconstituted securities in Portugal may use in your
denomination the same reference to its legal form that they use in its Member State
of origin.
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SUBSECTION II
Marketing in the European Union of collective investment bodies in
securities authorized in Portugal
Article 202.
Conditions of marketing in another Member State
1-A marketing in another Member State of units of body participation of
collective investment in securities authorized in Portugal is preceded by the
submission to the CMVM of notification letter drawn up pursuant to the provisions of the
Regulation (EU) No 584/2010 of the European Commission of July 1, 2010,
containing information relating to the particular conditions of marketing of the
collective investment body in securities in the Member State of
hosting, including, if applicable, information relating to the categories of units of
participation.
2-Whenever the units of participation of the collective investment body in
securities to be marketed by the entity responsible for the management, the letter
of notification must expressly mention that fact.
3-A entity responsible for the management of the collective investment body in values
securities must append to the notification letter an updated version of the following
documents:
a) Constitutive documents;
b) If applicable, the last annual report and eventual semiannual reports.
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4-The collective investment body in securities shall also inform
the CMVM on the manner in which the competent authority of the Member State of
hosting may access, by electronic means, to the documents referred to in the number
previous.
5-A CMVM verifies the compliance and completeness of the documentation presented by the
collective investment body in securities.
6-Within 10 days of the date of receipt of the letter of notification and the
full documentation predicted in the previous numbers, the CMVM transmits this
documentation to the competent authorities of the Member State in which the body of
collective investment in securities proposes to commercialize its units
of participation, attaching to the documentation a certificate, obeying the provisions of the
Regulation (EU) No 584/2010 of the European Commission of July 1, 2010,
attesting that the collective investment body in securities brings together the
conditions set out in Directive No 2009 /65/CE of the European Parliament and of the
Council of July 13, 2009.
7-After the transmission of the documentation, the CMVM notifies that fact to the body of
collective investment in securities.
8-Collective investment body in securities can access the market
of the host Member State as of the date of such notification.
9-A letter of notification and the certificate referred to in the preceding paragraphs are produced
in the language of current use in the international financial sphere.
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Article 203.
Update of information
1-A entity responsible for the management of collective investment body in values
authorized securities in Portugal that trade the units of participation in another
Member State notifies the competent authorities of the Member State of
hosting of any changes to the documents referred to in paragraph 3 of the article
previous, indicating how to access, by electronic way, to the updated versions.
2-In the event of a change in the information relating to the arrangements laid down for the
marketing communicated in the letter of notification or amendment of the categories of
participation units to be commercialised, the entity responsible for the management of the
collective investment body in securities authorized in Portugal
communicates them in writing to the competent authorities of the Member State of
host before these will produce effects.
3-A entity responsible for the management of collective investment body in values
authorized securities in Portugal that trade the units of participation in another
Member State notifies, cumulatively to the communication provided for in paragraph 8 of the article
18., the competent authorities of the State-Member State for the suspension of the
underwriting and rescue operations.
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CHAPTER III
From the activity of alternative investment bodies
SECTION I
Particular regimes
SUBSECTION I
Real estate investment bodies
DIVISION I
Heritage and operation
Article 204.
Heritage members of heritage
1-The asset of a real estate investment body may be made up of real estate
that correspond to urban buildings or autonomous fractions.
2-Real estate referred to in the preceding paragraph may be held in law of property,
of surface or other rights with equivalent content.
3-Only can be purchased for real estate investment bodies real estate
in a regime of comownership in the following situations:
a) In respect of real estate functionally connected to the exploitation of fractions
autonomous of the real estate investment body;
b) When the comowner is another alternative investment body or
pension fund, and should exist, depending on whether applicable, an agreement on the
constitution of horizontal property or on the allocation of income
generated by real estate.
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Article 205.
Participations in heritage-integral real estate companies
1-Can integrate the heritage of a real estate investment body to
participation in real estate society:
a) Whose social object uniquely falls into one of the activities that can be
directly developed by the real estate investment bodies;
b) Whose asset is comprised of a minimum of two thirds of immovable property liable to
directly integrate the portfolio of the real estate investment body;
c) Who do not detain social stakes in any other companies;
d) Who has registered office and central administration in one of the Member States or
OECD Member States in which the respect for investment body
real estate can invest;
e) Whose accounts are subject to regime equivalent to that of the investment bodies
real estate in independent review and reporting to the CMVM of
financial information;
f) Who commits contractually to the entity responsible for the management of the
real estate investment body to provide all the information that this should
refer to the CMVM;
g) Whose real estate and other assets that integrate the respected heritage or by this
have been acquired, exploited or disposed of, principles are applied
equiparable to the scheme applicable to real estate investment bodies,
particularly with respect to rules of assessment, conflicts of interest and
provision of information; and
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h) Whose shares are admitted to trading on a regulated market or in
multilateral trading system, in the case of investment bodies
open real estate.
2-Real estate investment bodies whose heritage integrates one or more
participations in real estate companies disclose, in the notes to the demonstrations
financial, all information relating to such companies so that the participant
can analyze the investment in a complete and appropriate manner, in the terms to be defined in
regulation of CMVM.
3-A The entity responsible for the management of the real estate investment body shall
prevent, as well as to make cessation within the time limit determined by the CMVM, the non
compliance with the provisions of the previous figures.
4-A CMVM can, by means of regulation:
a) Define the terms in which the holdings of corporations are valued
real estate to be acquired and held by the real estate investment bodies;
b) Impose additional conditions of transparency for real estate companies
can, at any time, integrate the asset of the investment bodies
real estate.
Article 206.
Integral part of the heritage
1-Can still integrate the heritage of real estate investment bodies
units of participation in other real estate investment bodies.
2-The limit for investment in units of participation is 25% of the total asset of the
organisms on account of which the acquisition is effected.
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3-A the entity responsible for the management cannot, regarding the set of organisms
that administre, invest in more than 25% of the units of participation of a
real estate investment body.
4-The units of participation that can integrate the heritage of bodies of
open real estate investment can only be units of participation of
real estate investment bodies open or admitted to trading on market
regulated or in multilateral trading system.
Article 207.
Financial instruments derived from heritage
1-Can still integrate the heritage of real estate investment bodies
financial instruments derived for coverage of the risk of the assets of the organisms
under management, whose underlying asset and maturity correspond to the nature of the assets and
liabilities held by the real estate investment bodies.
2-Having on the basis of the reasoned application of the entity responsible for the management, the
CMVM may authorize the use of another type of derivative financial instruments.
3-A exposure resulting to the underlying assets of derivative financial instruments
may not be greater than the value of the net worth of the fund.
4-Where transacted derived financial instruments are used outside
regulated market or in multilateral trading system, the fund cannot,
with respect to each counterparty, present an exhibition in excess of one third of its
heritage, measured in the terms of the previous number.
Article 208.
Integral liquidity of heritage
1-The heritage of a real estate investment body may still be constituted
by liquidity.
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2-For the purposes of the provisions of the preceding paragraph, deposit liquidity are considered
banking, certificates of deposit, units of participation of bodies of
investment of the money market or short-term money market and
financial instruments issued or guaranteed by a Member State with a term of
residual maturity of less than 12 months.
Article 209.
Non-eligible assets of the real estate investment body
They cannot integrate the heritage of real estate investment bodies the assets
with bonuses or charges that excessively hampers their alienation, namely the
assets object of real guarantees, pentimes or cautionary procedures.
Article 210.
Permitted activities and operations
1-Real estate investment bodies can develop the following activities:
a) Acquisition of real estate for leasing or for other forms of
onerous exploitation;
b) Acquisition of real estate for resale;
c) Acquisition of other rights on real estate, in the terms provided for in regulation
of the CMVM, with a view to the respect of the economic exploitation;
d) Realization of works of improvement, magnification and re-requalification of real estate in
wallet.
2-The enclosed real estate investment bodies can still develop projects
of construction and rehabilitation of real estate with one of the purposes laid down in the
points a ) and b ) of the previous number and within the limits defined for each type of
property investment body, and the CMVM may define, by regulation, the
terms and conditions in which this activity can be developed.
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3-Real estate investment bodies may acquire real estate whose
contraprestation be deferred in time, considering this type of acquisition for
effects of the determination of the indebtedness limits defined in this Regime
General.
DIVISION II
Open real estate investment bodies
Article 211.
Heritage of open real estate investment bodies
1-Open real estate investment bodies apply the following rules:
a) The value of real estate assets cannot account for less than two-thirds of the asset
total of the body;
b) The value of real estate may not represent less than one-third of the total asset of the
real estate investment body;
c) The value of an immovable or other real estate asset may not represent more than
20% of the total asset of the body;
d) The value of leased real estate, or object of other forms of onerous exploitation,
cannot represent less than 10% of the total asset of the body;
e) The value of leased real estate, or object of other forms of onerous exploitation,
cannot surpass 20% of the total asset of the body when the counterparty or
counterparts to be:
i) Entities provided for in points a ) a h ) of Article 147 (1);
ii) Entities which, under the law, find themselves in relation to dominance or
of group, or that are dominated, directly or indirectly, by a
same person, singular or collective.
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f) The holdings in real estate companies admitted to trading in market
regulated or in multilateral trading system may not represent
more than 25% of the total asset of the body;
g) They can only invest in real estate located in Member States or in countries
members of the OECD, and may not make investments outside the European Union
represent more than 25% of the total asset of the real estate investment body;
h) The indebtedness cannot account for more than 25% of the total asset of the body.
2-Open real estate investment bodies must have sufficient liquidity
to meet its obligations to rescue units of participation.
3-For the purposes of the provisions of the c ) of paragraph 1, constitutes an immovable the set of fractions
autonomous of a same building subjected to the regime of horizontal property and the
set of contiguous buildings functionally linked to each other by the existence of parts
common affections to the use of all or some of the units or fractions that make them up.
4-The shareholdings in real estate companies and the units of participation of others
real estate investment bodies are counted for the purposes of fulfilling the
minimum limit of holding of real estate assets by the procuring body.
5-The limits set out in points a ), b ) and d ) a f ) of paragraph 1 are awounded in relation to the average
of the values verified at the end of each of the last six months and apply to
of the first two years of activity of the real estate investment body.
6-In cases duly substantiated by the entity responsible for the management, it may
CMVM to authorize real estate investment bodies to detain
transiently a heritage structure that does not respect some of the points of the
n. 1.
7-A CMVM may fix technical rules on the heritage structure of the organisms of
real estate investment.
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DIVISION III
Real estate investment bodies closed
Article 212.
Heritage of closed subscribed real estate investment bodies
public
1-To the real estate investment bodies closed object of public offering of
subscription is applicable to the provisions of the previous article, with the following adaptations:
a) The development of construction projects cannot represent, in its
set, more than 50% of the total asset of the real estate investment body,
unless such projects are intended for rehabilitation of real estate, in which case such a limit
is 60%;
b) The value of an immovable cannot account for more than 25% of the total asset of the
real estate investment body;
c) The value of leased real estate, or object of other forms of onerous exploitation,
cannot surpass 25% of the total asset of the real estate investment body,
when the counterparty or counterparties are entities referred to in paragraph and ) of paragraph 1
of the previous article.
d) Indebtedness cannot account for more than 33% of the total asset of the body
of real estate investment.
2-In the event of an increase in capital of the real estate investment body, the limits
defined in the paragraph a ) of paragraph 1 of the preceding Article shall apply from one year to count
of the date of the said increase.
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Article 213.
Assumption of debts
The regulation of management of closed real estate investment bodies may
provide that, by favourable deliberation of the assembly of participants, the participants
of the particular underwriting real estate investment bodies provided for in the article
following take over the debts of these, provided that there is agreement of the creditors ' respects and that
is ensured that the overdue debts to the extinction of the investment bodies
real estate is the responsibility of its managing entities.
Article 214.
Private underwriting real estate investment bodies
1-To the private underwriting real estate investment bodies whose number of
participants are more than five, not being these exclusively investors
qualified, are applicable:
a) The points a ) and g ) of Article 211 (1), being allowed the investment in
real estate located in countries that do not integrate the European Union or the OECD until
to the limit of 10% of the total asset of the real estate investment body;
b) The point d ) of Article 212 (1).
2-To the private underwriting real estate investment bodies whose participants
do not gather the carateries referred to in the preceding paragraph shall not apply:
a) The limits of composition of the heritage, with the exception of those provided for in the a ) from the
n Article 211 (1);
b) The rule on the timing of the constitution provided for in the sub-paragraph ii ) of point (b) of the
Article 19 (4), when the management regulation set the maximum term of the offer
up to 90 days and calendarize the respective financial liquidations.
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DIVISION IV
Special real estate investment bodies
Article 215.
Heritage and limits of special real estate investment bodies the
1-Special real estate investment bodies can invest in the said assets
in the following number and are marketed together with specific segments of
investors defined in the management regulation and prospeardown.
2-In addition to the assets in general eligible to integrate the heritage of the bodies of
real estate investment, are still eligible to integrate the heritage of organisms
real estate investment specials the mixed or rustic buildings, simple rights of
exploration on real estate and financial instruments derived for any purpose.
3-To special real estate investment bodies are applicable in addition to the rest
limits set out in the constitutive documents, the limit to the investment provided in the
point ( a ) of Article 211 (1) and still:
a) The limit set out in the paragraph d ) of Article 211 (1), unless it is concerned with
body that provides for investing 50% or more of its total asset in units of
participation of real estate investment bodies;
b) The limit on indebtedness provided for in the h ) of Article 211 (1) or in the
point ( d ) of Article 212 (1), depending on whether the body is open or closed,
respects.
4-In the absence of the definition of the limits in the investment policy, the limits apply
established for real estate investment bodies, depending on their species
and nature.
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5-The special real estate investment bodies open or closed object of
public underwriting offer whose heritage integrand rustic buildings cannot
invest:
a) More than 20% of the total asset of the investment body in the same municipality or
equivalent territorial circumscription; and
b) More than 30% of the total asset of the investment body in municipalities, or
contigued equivalent territorial constituencies.
6-The limits provided for in the preceding paragraph shall be 50%, should the special bodies of
real estate investment have subscribed to insurance that covers the heritage respect.
Article 216.
Regulation of management
Without prejudice to the other information in general required, the management regulation of the
special real estate investment bodies defines, in particular, the type of assets that
can integrate the portfolio's portfolio and its limits, ensuring portfolio diversification
in the terms set out in paragraph a ) of Article 218 (3).
Article 217.
Subscriptions and bailouts of special real estate investment bodies
1-The minimum amount of the initial underwriting of units of participation of an organism
special real estate investment is from:
a) € 15000; or
b) Different amount, attests to the specific characteristics of each special organism
of real estate investment, at the request of the applicant or determined by the CMVM.
2-The limits provided for in the preceding paragraph shall not apply where the body
special real estate investment in cause or the participants benefit from a
guarantee of the invested capital.
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SUBSECTION II
Investment bodies in non-financial assets and bodies of
alternative investment in securities
Article 218.
Heritage and constitutive documents
1-The investment body in non-financial assets invests:
a) A minimum of 30% percent of the global net worth of net worth in non-financial assets,
provided that they are durable goods and have determinable value;
b) A maximum of 25% percent of the global net worth value in real estate and units of
participation in real estate investment bodies and participations in
real estate companies not admitted to trading on regulated market.
2-Without prejudice to the provisions of the item 1º ) of the subparagraph ii ) of the paragraph aa ) of the Article 1 (1)
2., the alternative investment body in securities may only invest
in units of participation of real estate investment bodies and shares of
real estate companies up to a limit of 10% of the overall net value.
3-The constitutive documents of the alternative investment body in values
securities and the investment body in non-financial assets concretize, in
particular:
a) The limits of investment, ensuring portfolio diversification in line
with the principle of allocation of risks laid down in paragraph aa ) of Article 2 (1),
depending on the overall net value of the alternative investment body in
securities or the investment body in non-financial assets:
i) By asset or entity;
ii) From loan operations and reporting of financial instruments;
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iii) From operations on derivative financial instruments, including derivatives
about goods;
iv) From short selling on financial instruments and the conditions to which
finds itself subject to its realization.
b) The maximum borrowing limits.
4-In the absence of the definition of the limits in the investment policy, the limits apply
set out in Subsection II of Section I of Chapter II of Title III.
5-The provisions of the b ) a d ) of Article 205 (1) shall apply to the bodies of
investment in non-financial assets.
6-A the entity responsible for the management cannot, regarding the set of organisms
of investment in non-financial assets that manages, acquire more than 25% of the units
of participation of a real estate investment body or the shares of a
real estate society.
7-Investment by investment body in non-financial assets in units
of participation of closed real estate investment bodies depends on these
present a duration equal to or lower than that of the investment body in assets
non-financial.
SECTION II
Information
Article 219.
Possibility of transfer and reuse of assets
1-The custodian and the principal broker of an alternative investment body
exclusively addressed to qualified investors or private underwriting only
can reuse the assets of the same since:
a) There is prior consent of the entity responsible for the management;
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b) Such a possibility to be provided for in the constitutive documents and in the contract
written between the parties; and
c) The depositary is informed of the consent given to the principal dealer.
2-The main broker may still transfer the assets, respected the terms set out in the
previous number.
Article 220.
Financial information
The entity responsible for the management informs the participants, with a periodicity
annual minimum, in appropriate terms to their knowledge, of the evolution of risk and
profitability of the alternative investment body, including a description of the
conditioners and any relevant facts, with an impact on the value of the
heritage of the same.
Article 221.
Disclosure of information to investors
1-The entities responsible for the management must, for each of the bodies of
alternative investment under management or marketed in Portugal in which there is
obtaining capital exclusively from qualified investors, make available
to investors, pursuant to Art. 163, according to the respective documents
constitutive and before the investment in these bodies, the following
information:
a) Description of the strategy and investment objectives of the body of
alternative investment;
b) Information on the place of establishment of the eventual body of
prime-type alternative investment and on the place of establishment of the
food type funds, if applicable;
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c) Description of the types of assets in which the alternative investment body may
invest and the techniques you can use, with all the risks that are
associates;
d) Limitations applicable to investment;
e) Circumstances in which the alternative investment body will be able to turn to the
leverage effect, types and sources of permitted leverage effect and the
risks that are associated with them, restrictions on the use of such mechanism,
information regarding the maximum level of the leverage effect that the entity
responsible for the management can use on behalf of the investment body
alternative and possible provisions relating to the reuse of assets and guarantees;
f) Description of procedures by which the alternative investment body
you will be able to change your investment strategy, your investment policy or
both;
g) Description of the main legal implications of the agreed contractual relationship for
investment effects, including information on jurisdiction, applicable law and
existence, or not, of any legal instrument that guarantees recognition and
application of sentencing in the State or territory where the investment body
alternative is found to be established;
h) Identification of the entity responsible for the management, the depositary, the auditor and the
any other entity that provides services to the investment body
alternative, with a description of the respective obligations and the rights of the
investors;
i) Description of how the entity responsible for the management meets the requirements
provided for in Article 71 (7);
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j) Description of the management functions subcontracted by the entity responsible for the
management of the alternative investment body and the guard duties
subcontractors by the depositary, with identification of the subcontractor and the
conflicts of interest eventually resulting from such subcontratations;
k) Description of the evaluation process and the valorisation of the assets, namely the
applied methods for the determination of the value of the assets of difficult evaluation, in the
terms of the Articles 93 to 95.
l) Description of the management of the investment body's liquidity risks
alternative, including redemption rights under normal circumstances and in
excecional circumstances, and conditions of reimbursement provided for in the regulation of
management;
m) Description of all remuneration, charges and expenses directly or indirectly
supported by investors and indication of the maximum applicable value;
n) Description of the form by which the entity responsible for the management of the body of
alternative investment ensures equitable treatment of investors and, case
there are categories of units of participation with special rights, description of the
characteristics of such preferential treatment, with indication of the type of investors
that can subscribe to such units of participation and, if applicable, relations
legal or economic existing with the alternative investment body or
with the entity responsible for the management of the same;
o) Most recent annual report and accounts;
p) Terms and conditions of issue and sale of units of participation;
q) The last net worth value of the alternative investment body or the
last market price of the investment body share unit
alternative, in accordance with Article 143;
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r) Historical evolution of the results of the alternative investment body, if
available;
s) Identity of the main broker, description of any relevant agreement of the
alternative investment body with its main brokers, shape
how conflicts of interest in that matter are managed, indication of the possible
provisions of the contract concluded with the depositary relating to the possibility of
transfer and reuse of assets of the alternative investment body and
information relating to the transfer of responsibility to the main broker;
t) Indication of how and when the information required in paragraphs 5 and 5 will be disclosed and
6.
2-A The managing body responsible for the management should still inform investors:
a) Previously to investment in the alternative investment body, from
any agreement made by the depositary of contractual exclusion of its
liability, in accordance with Article 122 (6);
b) Immediately, of any change:
i) Significant of the information referred to in the preceding paragraph, defined in the
terms in the Delegated Regulation (EU) No 231/2013 of the European Commission,
of December 19, 2012;
ii) Of the liability regime applicable to the depositary.
3-A amendment referred to in the sub-paragraph i ) of the paragraph b ) from the previous number should still be
identified in the report and annual accounts of the alternative investment body
directed exclusively to qualified investors.
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4-Dealing with alternative investment body, where there is obtaining
capitals exclusively from qualified investors, thank you to publish a
prospeit by virtue of the provisions of Articles 134 or 236. both of the Code of Values
Securities, approved by Decree-Law No. 486/99, of November 13, will only have to
be disclosed to investors the information referred to in the preceding paragraphs that
are complementary to the constant information of the prospetto, either separately,
want as an attachment to the prospeto.
5-The entities responsible for the management shall periodically disclose to investors,
in relation to each of the alternative investment bodies under management and each
one of the third-party alternative country investment bodies that trade:
a) The percentage of the assets of the alternative investment body subject to
special mechanisms arising from their illiquid nature;
b) Any new mechanisms for managing the liquidity of the investment body
alternative;
c) The current risk profile of the alternative investment body and the systems of
management of risks adopted by the entity responsible for the management of it.
6-The entities responsible for the management using the leverage effect must
disclose periodically to investors, in relation to each of the bodies of
alternative investment under management and to each of the investment bodies
alternative country third party marketing in Portugal:
a) Any changes from the maximum leverage effect level to which the entity
responsible for the management will be able to appeal on account of the investment body
alternative, as well as any rights to reuse guarantees provided to the
shelter from the agreement on the leverage effect;
b) The total value of the leverage effect to which the investment body
alternative resorted.
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7-A The provision of information to investors under paragraphs 5 and 6 shall comply with the provisions of
in the Delegated Regulation (EU) No 231/2013 of the European Commission, 19 of
December 2012.
Article 222.
Provision of information to CMVM
1-The entities responsible for the management regularly submit to CMVM reports
on the main markets and instruments in which they negotiate on account of the
alternative investment bodies under management, reporting on the markets of
that are members or where they actively negotiate and the main positions at risk and
concentrations of the most important risks from each of the investment bodies
alternative under management.
2-In relation to each of the alternative investment bodies per se managed or
commercialized, the entities responsible for the management must provide the CMVM with
following information:
a) Percentage of the assets of alternative investment bodies subject to
special mechanisms arising from their illiquid nature;
b) Possible new mechanisms for managing the liquidity of the investment body
alternative;
c) Current risk profile of the alternative investment body and indication of the
risk management systems used by the entity responsible for the management of the
alternative investment body to manage the market risks, the risks of
liquidity, counterparty risks, operational risks and other risks;
d) Main asset categories in which the alternative investment body
invested; and
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e) Results of the effort tests carried out under the terms of the and ) of paragraph 3 of the
article 79.
3-The entities responsible for the management of alternative investment bodies must
to provide the CMVM, at the request of this, the following documents:
a) A report and accounts referred to in point (a) of Article 160 (1), by
exercise, in respect of each of the alternative investment bodies of the
European Union by you managed and to each alternative investment body of
third country marketing in the European Union;
b) A detailed list of all alternative investment bodies per se
managed, at the end of each quarter.
4-The entities responsible for the management that manage investment bodies
alternative with substantial recourse to the leverage effect should make available to the
CMVM information on the global level of the leverage effect to which it has resorted each
one of the alternative investment bodies by you managed, broken down in terms of
of the leverage effect by contraction of cash loans or in values
securities and the effect of leverage inherent in positions on financial derivatives,
as well as the extent to which the assets of the alternative investment bodies
have been reused under leveraging mechanisms.
5-The information referred to in the preceding paragraph shall include, for each of the
alternative investment bodies managed by the entity responsible for the management, the
identification of the five largest cash or securities funders and
the amounts of leverage received from each of these by each of these
alternative investment bodies.
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6-The managing entities of third countries shall be subject to the obligations of provision of
information referred to in paragraphs 3 and 4 with regard to the bodies of
alternative investment allowed in Portugal by you managed and to the bodies of
alternative investment of third country that trade in Portugal.
7-In case this is necessary for the effective control of systemic risk, the CMVM may,
periodically or in a random manner, and without prejudice to the competence of the Bank of
Portugal as a macroprudential authority, apply for additional information to
entities referred to in this article, and shall inform ESMA of the requirements of
additional information.
8-A The provision of information to the CMVM pursuant to paragraphs 1 a to 5 obeys the provisions of the
Delegated Regulation (EU) No 231/2013 of the European Commission of December 19
of 2012.
Article 223.
Assessment of risks
1-A information provided under the previous article shall be used by the CMVM and the
Bank of Portugal, as a macroprudential authority, to assess the extent to which the
resource to the leverage effect is contributing to the accumulation of risks
systemic in the financial system, of risks of disturbance in markets or risks
for the long-term growth of the economy.
2-A CMVM makes available the information referred to in the previous article and the information
provided for the purposes of the instruction of the authorization procedure and registration of the entity
responsible for the management:
a) To the European Committee on Systemic Risk;
b) To the European Securities and Markets Authority; and
c) To the competent authorities of the other Member States concerned.
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3-A CMVM further makes available to the competent authorities of the Member States
directly interested, right away, information about whether a responsible entity
by the management of alternative investment bodies or a body of
alternative investment by this managed can potentially constitute a source
important of counterparty risks to a credit institution or other
important institutions under the prism of systemic risk in other Member States.
4-The entities responsible for the management must demonstrate that the limits of the appeal to the
leverage effect for each alternative investment body per se managed are
reasonable and to comply at any time those limits.
5-Taking into account the assessment referred to in paragraph 1 and where this is deemed necessary
to ensure the integrity and stability of the financial system, CMVM imposes limits
at the level of leverage that the entity responsible for the management may use or other
restrictions on the management of alternative investment bodies, in order to limit
the degree of contribution of the resource to the leverage effect for the accumulation of risks
systemic in the financial system or risks of disrupting markets.
6-A CMVM refers to the Bank of Portugal the information needed for the assessment
referred to in paragraph 1, accompanied by opinion as to the need for the imposition of
restrictions set out in the preceding paragraph.
7-The Bank of Portugal refers to the CMVM:
a) Its binding opinion as to the need for the imposition of planned restrictions
in paragraph 5 and the content of them;
b) The information necessary for the fulfilment of the duty of collaboration provided for in the
n. 2, when they are in question managing entities authorized by the Bank of
Portugal.
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8-A CMVM notifies the European Securities and Markets Authority, the
European Systemic Risk Committee and the competent authorities of the Member State
of origin of the alternative investment body in question of the restrictions imposed
under paragraph 5.
9-A notification referred to in the preceding paragraph shall be:
a) Effectuated at least 10 days in advance in relation to the date on which
intends for the proposed measure to begin to produce effects or be renewed, save
occurrence of excecional circumstances;
b) Includes details of the proposed measure, the reasons for the measure and the indication of the date
of the beginning of production of effects.
10-If CMVM propuser or adopt measures contrary to the opinion of the European Authority
of the Securities and Markets, issued following the notification provided for in the
point ( b ) of the preceding paragraph or on the basis of the information made available on the terms
of paragraph 2, informs that Authority of the fact, stating its reasons and requesting the
European Securities and Markets Authority prior notification case
this decide to publish the reasons given by the CMVM.
11-The provisions of the preceding paragraphs shall not apply to the entity responsible for the management
that is an institution of credit.
SECTION III
Obligations arising from a position of control in unlisted companies and in
corporate issuers of shares admitted to trading on regulated market
Article 224.
Scope of application
1-A This section applies to the entities responsible for the management that:
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a) Generate one or more alternative investment bodies that, individually
or together, on the basis of an agreement with the aim of acquiring a position of
control, acquire a position of control in an unlisted society, in the
terms of paragraph 5;
b) They collaborate with one or more entities responsible for management on the basis of a
agreement by virtue of which the alternative investment bodies managed in
set with such entities acquire a position of control in a society
not listed, in accordance with paragraph 5.
2-A This section does not apply to unlisted companies with the following
characteristics:
a) Small and medium-sized enterprises in the acetation of Article 2 (1) of the Annex to
Recommendation 2003 /361/CE of the European Commission of May 6, 2003,
on the definition of micro, small and medium enterprises;
b) Entities with specific purposes that have per social object buy, detain or
administer real estate.
3-Without prejudice to the provisions of the preceding paragraphs, paragraph 1 of the following article is
also applicable to the entities responsible for the management that manage bodies of
alternative investment that acquire unchecked participation in a society
not quoted.
4-A This section shall also apply to the entities responsible for the management that they manage
alternative investment bodies that acquire control position on
issuing company, with registered office in the European Union, of shares admitted to trading in
regulated market, in the terms set out in Articles 226 and 228, being applicable:
a) The provisions of paragraphs 1 and 2, with the necessary adaptations;
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b) The provisions of Article 187 of the Securities Code approved by the
Decree-Law No 486/99 of November 13 with regard to the position of control
on issuable companies, based in the European Union, of shares admitted to the
trading on regulated market.
5-For the purposes of this section, it is understood by position of control of the body of
alternative investment in non-listed society the equivalent of more than 50% of the
voting rights of the society, considering, in addition to the voting rights by you held
directly, also the voting rights of the following entities:
a) Any society controlled by the alternative investment body; and
b) Any natural or collective person acting on their own behalf, but on account of the
alternative investment body or any society controlled by
this one.
6-For the purposes of the preceding paragraph, the percentage of the voting rights is calculated with
basis in the entirety of the shares to which they are associated voting rights, even in
case of suspension of the respected exercise.
7-A This section shall apply without prejudice to the provisions of Articles 412 and 413 of the
Labour Code, passed by Law No. 7/2009 of February 12, as to the
handling of confidential information.
8-The rules laid down in this section apply only to the extent that they are not
applicable rules on qualified shareholdings and public takeover bids
binding provided for in the Securities Code, approved by the Decree-Law
n. 486/99, of November 13.
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Article 225.
Communication on acquisition of qualified shareholdings and a position of
control in uncoated society
1-A entity responsible for the management informs the CMVM about voting rights,
arising from acquisitions, divestments or holdings of shares in unlisted society
by alternative investment body per se managed, where the percentage of the
same to reach or exceed or go down below the thresholds of 10%, 20%, 30%, 50% and
75%.
2-A entity responsible for the management notifies you of the acquisition of a position of
control in unlisted society, by alternative investment body by you
managed, individually or together:
a) To the unlisted society;
b) To shareholders whose identities and addresses are at their disposal, may be
made available by the unlisted company or can be obtained through a
registration to which you have or can gain access; and
c) To CMVM.
3-The notifications referred to in paragraphs 1 and 2 are to be effected as soon as possible
and, at most, within 10 working days from the day on which the body of
alternative investment reaches, exceeds or goes down below the applicable threshold or acquiesce
a position of control over the unlisted society.
4-A notification of control position provided for in paragraph 2 shall inform about:
a) The resulting situation in terms of voting rights;
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b) The conditions under which the position of control was acquired, including information
on the identity of the different shareholders involved, the natural person or the
collective person eventually enabled to exercise the voting rights on account
of these and, where appropriate, the chain of companies through which the voting rights
are effectively detained;
c) The date on which the control position has been acquired;
d) The identity of the entity responsible for the management which, individually or by force
of an agreement with another entity responsible for the management, manages the body of
alternative investment that has acquired the position of control;
e) The policy aimed at preventing and managing conflicts of interest, in particular between the
same, the alternative investment body and the society, including
information on the specific guarantees established to ensure that any
agreement between the entity responsible for the management and the society or between the body
of alternative investment and the society is negotiated on equal basis
conditions;
f) The foreign and internal communication policy relating to society, in particular in what
concerns the workers.
5-A entity responsible for the management disseminates, on behalf of the investment body
alternative per se managed that acquiesde, individually or jointly, a position of
control in unlisted society, its intentions with respect to future activity of the
uncoated society and the likely repercussions on employment, including any
significant change in conditions of employment:
a) To the uncoated society; and
b) To the shareholders of the unlisted society whose identities and addresses are to their
provision, can be made available by the unlisted company or may be
obtained by means of a register to which you have or can gain access.
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6-A the managing body responsible for the management requests, in the notification to the unlisted company, and
enlivies all efforts to ensure that the workers ' representatives or, in the
lack of these representatives, the workers themselves are, by the respective organ of
administration:
a) Informed, duly and without undue delays of the acquisition of a position of
control by the alternative investment body by itself managed and the
information referred to in paragraph 4;
b) Have access to the information referred to in the preceding paragraph.
7-A entity responsible for the management provides the CMVM and the participants of the body
of alternative investment information on the financing of the position acquisition
of control in uncoated society.
Article 226.
Communication on acquisition of a control position in an issuing company
of shares admitted to trading on regulated market
1-A entity responsible for the management notifies you of the acquisition of a position of
control in an issuing company, based in the European Union, of shares admitted to the
trading on regulated market, by alternative investment body by
si managed, individually or jointly:
a) To the non-listed issuer company;
b) To shareholders whose identities and addresses are at their disposal, may be
made available by the unlisted company or can be obtained through a
registration to which you have or can gain access; and
c) To CMVM.
2-A notification of control position provided for in the preceding paragraph shall inform about
the subjects referred to in points d ) a f ) of paragraph 4 of the previous article.
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3-A the managing body responsible for the management requests in the notification to the issuing company, with
registered in the European Union, of shares admitted to trading on regulated market,
that the board of directors of this report properly and immediately the
representatives of the employees or, in the absence of those representatives, the own
workers, from the acquisition of a control position by the investment body
alternative per se managed and the information referred to in the preceding paragraph.
Article 227.
Annual reports of the alternative investment bodies that control
unlisted companies
1-A entity responsible for the management of alternative investment body that
acquiesn, individually or jointly, the control of an unlisted company:
a) Calls for and enlivies all efforts to ensure that the annual report of the society
not coated is drawn up in the terms of the following number; or
b) Includes in the annual report of the alternative investment body the information,
relating to the unlisted company concerned, provided for in the following number.
2-For the purposes of the provisions of the preceding paragraph, the annual report of the unlisted society
or of the collective investment body shall include:
a) At least, a faithful analysis of the evolution of business and the situation of society
at the end of the period covered by the annual report;
b) Reference to the important events occurring after the closure of the
exercise;
c) Reference to the predictable evolution of society;
d) In respect of the acquisition of own shares, the information provided for in the d )
of Article 66 (5) of the Code of Commercial Societies.
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3-In case you have opted for the alternative provided for in paragraph 1 (a), the responsible entity
by the management of the alternative investment body concerned makes available the
information referred to in the previous number to the participants of the same as long as it is already
available, within the time limit set out in paragraph a ) of Article 160 (2) and, at most, in the period
in which the annual report of the unlisted society should be approved.
4-In case you have opted for the alternative provided for in ( b ) of paragraph 1, the responsible entity
by the management of collective investment body concerned requests and enlivies all the
efforts to ensure that the governing body of the unlisted society
makes available to employees ' representatives or, in the absence of those representatives, to the
own employees, the information relating to the society referred to in paragraph 2 contained in the
annual report of the alternative investment body concerned, at the time specified in the
point ( a ) of Article 160 (2).
Article 228.
Conservation of capital
1-A entity responsible for the management of collective investment body that acquiits,
individually or together, the control of unlisted or socieal society
issuer, with registered office in the European Union, of shares admitted to trading on market
regulated, shall, for a period of 24 months from the acquisition of that
control, make efforts to prevent any distribution, reduction of capital,
amortization of shares or acquisition of own shares by the society, pursuant to the
n. 3, and in particular:
a) Not to facilitate, support or order any distribution, reduction of capital,
amortization of shares or acquisition of own shares by the society; and
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b) In so far as it is authorized to vote on behalf of the body of
alternative investment in the meetings of the governing body of the society, no
may vote in favour of any distribution, capital reduction, amortization of
shares or acquisition of own shares by the society.
2-The obligations set out in the preceding paragraph shall focus on:
a) Any distribution to shareholders made when, on the date of the closure of the
last economic exercise, the net assets resulting from the annual accounts of the
society are, or pass through, the distribution, lower than the sum of the amount
of the subscribed capital and the statutory or statutory reserves, understanding that, in case of
unrealized part of the subscribed capital is not accounted for in the asset of the
balance sheet, this amount will be deducted from the amount of the subscribed capital;
b) Any distribution to shareholders whose amount exceeds the amount of the
results at the end of the last economic exercise, plus the profits carried over
and of the amounts taken out of reserves available for this purpose and deduced the
transient losses and the amounts affected to reserves imposed by the law or by the
contract of society;
c) If the acquisition of own shares is allowed, the acquisition effected by the society
including the shares acquired previously by the society and by themselves held and the
shares acquired per person acting on behalf of their own but on account of the society
that has as a result to reduce the net asset up to an amount lower than the
mentioned in the point a ).
3-For the effects of the previous number:
a) The term "distribution" comprises, inter alia, the payment of dividends and
interest corresponding to the shares;
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b) The provisions on the reduction of capital do not apply to a reduction of the
capital subscribed that is for the purpose of compensating losses suffered or incorporating
values in a reserve that cannot be distributed, provided that, in consequence
of that transaction, the amount of the said reservation does not exceed 10% of the capital
subscribed reduced; and
c) The restriction set out in the c ) shall be subject to the provisions of the Code of
Commercial Societies on acquisition of own shares.
SECTION IV
Cross-border marketing
SUBSECTION I
Marketing in Portugal of alternative investment bodies not
established in Portugal
DIVISION I
General provisions
Article 229.
Information to investors
1-The managing entities of the European Union and of the third country that trade in
Portugal units of participation of alternative investment bodies not
established in Portugal exclusively from qualified investors discloses
on national territory the information and documents that should be disclosed
relatively to the alternative investment bodies established in Portugal in
that there is obtaining capital exclusively from qualified investors.
2-The information and documents referred to in the preceding paragraph shall be disclosed in the
terms applicable to the alternative investment bodies established in Portugal,
may be disclosed in Portuguese, English or in another language approved by the CMVM.
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3-A accounting information presented in the report and annual accounts of the bodies of
alternative investment not constituted in Portugal should be arranged accordingly
with the accounting standards of the State-Member of origin or third country where the
alternative investment body is established and with accounting rules
provided for in the constitutive documents of the same.
DIVISION II
Marketing in Portugal of alternative Union investment bodies
European
Article 230.
Marketing by national managing companies and by managing entities of
third countries authorized in Portugal
1-The managing societies provided for in Article 65 (1) and the country's managing entities
third authorised in Portugal can trade in Portugal, along with
qualified investors, units of participation of investment bodies
alternative of the European Union per se managed.
2-The entities referred to in the preceding paragraph notify the CMVM of all organisms
of alternative investment from the European Union by you managed, whose units of
participation aim to commercialize with qualified investors in Portugal.
3-A notification provided for in the preceding paragraph shall contain:
a) An operational programme that identifies the investment bodies
alternative whose units of participation the entity intends to commercialize, with
an indication of the place where they are established or constituted;
b) The constitutive documents of the alternative investment bodies;
c) The identification of depositary respects;
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d) A description of the alternative investment bodies or any
information on the same that is available to investors;
e) The information on the place where the alternative investment body of type
main is established or constituted, should the investment body
alternative whose units of participation intend to commercialize are of the type
food;
f) The information provided for in Article 221 (1) in respect of each of the
alternative investment bodies whose units of participation are intended
commercialize; and
g) The information on the mechanisms adopted to prevent the units from
participation can be marketed to unqualified investors,
notably when the entity subcontracts to the third the provision of services
of investment related to the alternative investment bodies.
Article 231.
Decision of the CMVM
1-A CMVM decision to enable or not the commencement of the marketing provided for in the
previous article shall be notified to the entities referred to therein within 20 days of the
of the date of receipt of the completely instructed notification.
2-A CMVM may only refuse marketing when:
a) The activity of the entities does not comply or comes to fail to comply with the provisions of the
present General Regime;
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b) Dealing with alternative food type investment body, the
principal type investment body is not a body of
alternative investment of the European Union managed by a managing body of the
European Union.
3-The entities may initiate the marketing of the units of participation from the
date of the notification, provided for in paragraph 1, of a decision indicating such a possibility.
4-A CMVM informs of the decision referred to in the preceding paragraph:
a) The competent authorities of the Member States of origin of the bodies of
alternative investment; and
b) The European Securities and Markets Authority in the case of
alternative investment bodies managed by country manager entity
third.
Article 232.
Substantial change communication
1-The managing societies provided for in Article 65 (1) and the country's managing entities
third authorised in Portugal communicate in writing to CMVM any change
substantial of the elements communicated in the terms of Article 230.
a) With at least one month in advance in relation to the date of the respective
production of effects, in the case of planned changes; or
b) Immediately, in the case of unforeseen changes.
2-Received the communication provided for in the letter a ) from the previous number and by checking that the
foreseen changes imply a management of the alternative investment body in
non-compliance with the provisions of this General Regime, or that the entity defaults on the
disposed of the same, the CMVM shall, in good time, notify the entities that the
expected changes cannot be adopted.
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3-A CMVM shall take appropriate measures for the situation in question, including, if
necessary, the express prohibition of the marketing of the units of participation of the
alternative investment body, when:
a) The entity adopts the changes provided for in violation of the terms of the notification
made by the CMVM;
b) Unforeseen changes occur with the consequences referred to in the number
previous; or
c) Please check that the entity does not comply with the provisions of this General Regime.
Article 233.
Marketing by managing entities of the European Union or third countries
authorized in another Member State
1-It is condition of the marketing exclusively with qualified investors, in
Portugal, of units of participation of alternative investment bodies of the
European Union, managed by managing entity of the European Union or of third country
authorized in another Member State, which the CMVM receives from the competent authority,
as per the case, of the Member State of origin or reference of the managing body:
a) The complete notification process of all investment bodies
alternative managed by the applicant, whose units of participation intend
commercialize;
b) Certificate issued by the competent authority of the Member State of origin or
of reference of the managing entity, attesting that the same is authorised to manage
alternative investment bodies with the specific investment strategy
in cause;
c) Information relating to subsequent changes to the constant elements of the
initial notification referred to in paragraph a ).
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2-The complete notification procedure provided for in paragraph 1 contains the elements referred to in the
Article 230 (3), as well as the indication of the Member States where the entity
manager intends to commercialize the units of participation in question.
3-The mechanisms adopted by the managing entity of the European Union or of third country
authorized in another Member State to prevent the participation units from being able to
be marketed in Portugal to unskilled investors, are subject
to the terms set out in the national legislation and to the supervision of the CMVM.
4-The complete process of notification and the certificate referred to in paragraph 1:
a) They are produced in Portuguese or in the language of current use in the financial sphere
international; and
b) They can be transmitted by means of an electronica.
DIVISION III
Marketing in Portugal of alternative country investment bodies
third
Article 234.
Marketing by authorised managing entities in Portugal
1-The managing companies provided for in Article 65 (1) may commercialize in
Portugal, exclusively together with qualified investors, units of participation of
alternative country investment bodies of third country per se managed, as well as of
alternative investment bodies of the European Union of food type whose
alternative type alternative investment body not to be constituted nor managed
by managing entity of the European Union, as long as they meet all requirements
set out in the present General Regime that are applicable to them.
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2-Third country managing entities authorised in Portugal may equally
marketing in Portugal, together with qualified investors, units of participation
of alternative investment bodies from third countries by you managed.
3-A marketing of alternative third country alternative investment bodies
in the previous numbers depends on:
a) Appropriate cooperation mechanisms have been agreed upon between the CMVM and the
supervisory authority of the third country where the body is established
alternative investment, in order to ensure at least an exchange of information
efficient, taking into account Article 250 (3), which allows the CMVM to exercise the
its competence in accordance with the provisions of this General Regime;
b) The third country where the alternative investment body is established no
be part of the list of the Countries and Non-Cooperative Territories of the Action Group
Financial against money laundering and the financing of terrorism;
c) The third country where the alternative investment body concerned is
established to have signed with the Portuguese State and with each of the others
Member States in which it is proposed to commercialize the units of participation
of this alternative investment body an agreement entirely as per
with the norms of Article 26 of the Fiscal Convention Model on the Throughput
and the Heritage of the OECD and to ensure an effective exchange of information in
tax matters, including possible multilateral tax arrangements.
4-The managing societies provided for in Article 65 (1) and of the third country authorized in
Portugal communicate to CMVM of all alternative investment bodies of
third country by you managed, whose units of participation intend to commercialize
exclusively together with qualified investors in Portugal.
5-A communication to CMVM provided for in the preceding paragraph contains the elements referred to
in Article 230 (3).
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6-The communication procedure referred to in paragraph 4 shall apply to the provisions of paragraph 1,
point ( a ) of Article 231 (2) and 3 (3).
7-A CMVM informs the European Securities and Markets Authority of
that the entities can start marketing in Portugal.
8-The managing societies provided for in Article 65 (1) and the country's managing entities
third authorised in Portugal communicate in writing to CMVM any change
substantial of the elements communicated in the terms of paragraphs 4 and 5:
a) With at least one month in advance in relation to the date of respect production
of effects, in the case of planned changes; or
b) Immediately, in the case of unforeseen changes.
9-It is correspondingly applicable to the provisions of Article 232 (2) and (3).
Article 235.
Marketing by managing entities of the European Union or third countries
authorized in another Member State
1-It is condition of the marketing to qualified investors, in Portugal, of
units of participation of alternative investment bodies of third country,
managed by managing entity of the European Union or of third country authorised in another
Member State, which the CMVM receives from the competent authority, as the case may be, of the
State-Member State of origin or reference of the managing body:
a) The complete notification process of all investment bodies
alternative managed by the applicant, whose units of participation intend
commercialize;
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b) Certificate issued by the competent authority of the Member State of origin or
of reference of the managing entity, attesting that the same is authorised to manage
alternative investment bodies with the specific investment strategy
in cause;
c) Information relating to subsequent changes to the constant elements of the
initial notification referred to in paragraph a ).
2-Case the CMVM disagrees with the assessment made by the competent authority that referred the
notification procedure as to the provisions of paragraphs (a) and (b) of paragraph 3 of the preceding Article
may submit the matter to the European Securities Authority and the
Markets with a view to their assistance in achieving an agreement between the
authorities or the adoption of a binding decision by the same, in the terms of the article
19. of Regulation (EU) No 1095/2010 of the European Parliament and of the Council, of 24
of November.
3-To the marketing referred to in paragraph 1 and to the notification process tendon to that
marketing is still applicable to the provisions of Article 233 (2 a) to 4.
4-Case a competent authority that has referred the notification procedure
in paragraph 1 recuse an application by the CMVM of exchange of information pursuant to the standards
regulatory techniques approved by the European Commission that specify the
procedures for coordination and exchange of information between authorities
competent, the CMVM may also submit the matter to the European Authority of the
Securities and Markets for the purposes set out in paragraph 2.
Article 236.
Depository of alternative investment bodies of third country
1-A marketing in Portugal of alternative country investment bodies
third depends on the depositary, identified in the terms of the provisions of the paragraph c ) from the
n Article 230 (3):
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a) Be established in the third country in which alternative investment body
is established or in the Member State of origin or reference, as per the
case, of the respect of the managing entity;
b) Should it not be one of the entities referred to in Article 120 (2), to be an entity
of the same nature, provided that it is subject to prudential regulation,
including minimum requirements of own funds and supervision that have the
same effect as the legislation of the European Union and are effectively applied.
2-A marketing in Portugal of alternative country investment bodies
third, whose depositary is established in a third country, depends still on:
a) The CMVM and, being the case, the competent authority of the Member State of origin
of the managing entity of the European Union, have signed cooperation agreements and
exchange of information with the supervisory authorities of the State in which if
finds established the depositary;
b) The third country in which the depositary is established not to be part of the list of
Non-Cooperative Countries and Territories of the Financial Action Group against the
money laundering and the financing of terrorism;
c) The CMVM and, being the case, the competent authority of the Member State of origin
of the managing entity of the European Union, having signed with the third country in which the
depositary is established an agreement in accordance with the norms of Article 26 of the
Model of Fiscal Convention on the Income and Heritage of the OECD and which
ensure an effective exchange of information in tax matters, including
possible multilateral tax arrangements;
d) The depositary is contractually responsible to the participants of the
alternative investment body, in accordance with Article 122 (1 a) (4),
and expressly agree to comply with the provisions of Article 124.
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3-Received the notification process provided for in paragraph 3 of the preceding Article for the purpose of
marketing in Portugal of third country alternative investment bodies
by European Union managing entity, CMVM, case dissent from the assessment made by the
competent authority of the Member State-Member of origin of the managing entity on the
application of the provisions of the provisions a ), b ) and d ) from the previous number, may submit the
matter to the European Securities and Markets Authority having in view
your assistance in achieving an agreement between the authorities or the adoption of a
binding decision by the same, in accordance with Article 19 of Regulation (EU) No
1095/2010 of the European Parliament and of the Council of November 24, 2010.
DIVISION IV
Non-harmonised scheme of marketing of investment bodies
alternate
Article 237.
Exclusive marketing in Portugal of alternative investment bodies
from third country
1-Up to the date of commencement of the provisions of Articles 234 and 235, the societies
gestures in Article 65 (1) and the European Union's managing entities may
commercialize, only on national territory, exclusively with investors
qualified, units of participation of alternative country investment bodies
third per se managed, as well as alternative investment bodies of the Union
European type food type, whose main type investment body is not
of the European Union or managed by a managing entity of the European Union.
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2-A The marketing provided for in the preceding paragraph shall be subject to the authorisation of the CMVM,
on the terms set out in regulation of the CMVM, and depends on the verification of the
following conditions:
a) The entity complies with all the requirements set out in the present General Regime,
with the exception of the provisions of Articles 120 to 128, and shall, however, ensure the
appointment of entities to perform the functions referred to in (a) to and)
of Article 121 (1) and (2), and may not be able to perform such
functions, and render to the CMVM, or to the competent authority of the Member State of
origin in the case of a managing entity of the European Union, information on the
identity of the entities that perform them;
b) Appropriate cooperation mechanisms are planned for control purposes
of systemic risk and complying with international standards between the CMVM, or the
competent authority of the Member State-Member of origin in the case of an entity
gestures of the European Union, and the supervisory authorities of the country third where the
alternative investment body is established, in order to ensure a
efficient exchange of information that allows the CMVM, or the competent authority
of the Member State of origin in the case of a managing entity of the European Union,
continue its assignments in accordance with the provisions of this General Regime.
c) The third country where the alternative investment body is established no
be part of the list of the Countries and Non-Cooperative Territories of the Action Group
Financial against money laundering and the financing of terrorism.
3-It is still subject to authorization to be marketed to investors not
qualified in Portugal of units of investment body share
alternative non-constituted in Portugal, in the terms defined in regulation of the
CMVM.
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4-Up to the date of commencement of the provisions of Articles 234 and 235, the entities
third country gestures may also commercialize, only on national territory,
exclusively together with qualified investors, units of participation of
alternative investment bodies by you managed.
5-A The marketing provided for in the preceding paragraph shall be subject to the authorisation of the CMVM,
on the terms set out in regulation of the CMVM, and depends on the verification of the
following conditions:
a) The entity complies with the provisions of Articles 115, 131, 160, 163, 221, 221 and
222. and 229, with respect to alternative investment bodies
marketed in the terms of this paragraph, and Articles 224 to 228, if
the alternative investment body by you marketed is covered by the
n Article 224 (1);
b) Appropriate cooperation mechanisms are planned for control purposes
of systemic risk and complying with the international standards between CMVM, the
competent authorities of the alternative investment bodies of the Union
European, the supervisory authorities of the country third where the entity gestures
of the third country is established and, if it is the case, the supervisory authorities of the
third country where the alternative investment bodies of the third country
are established, in order to ensure an efficient exchange of information that
allow the CMVM to continue its assignments in accordance with the provisions of the
present General Regime; and
c) The third country where the managing body is established and, if it is the case, the
alternative country alternative investment body, do not be part of the list of the
Non-Cooperative Countries and Territories of the Financial Action Group against the
money laundering and the financing of terrorism.
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SUBSECTION II
Marketing in the European Union
Article 238.
Prior communication to CMVM
1-A marketing in another Member State, exclusively with investors
qualified, from units of participation of alternative investment bodies
constituted in Portugal, in another Member State or in a third country, by the respects
entities responsible for the management or managing entities of third country authorized in
Portugal, is preceded by communication to the CMVM.
2-A communication provided for in the preceding paragraph shall contain the elements referred to in paragraph 3
of Article 230 and the indication of the mechanisms instituted for the marketing of the
alternative investment bodies, as well as Member States where the
respects entity responsible for the management or managing entity intends to commercialize the
units of participation in question.
Article 239.
Transmission of the communication process
1-A CMVM transmits the communication process referred to in the previous article
competent authorities of the host Member States indicated in the terms
of paragraph 2 of the preceding Article, within 20 days of the date of receiving the procedure
completely instructed, except in the situations provided for in the following number.
2-A CMVM refuses marketing when:
a) The activity of the entities responsible for the management or managing entities of country
third authorised in Portugal violates the provisions of this General Regime;
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b) Dealing with alternative investment body of the European Union of type
food, the main type investment body is not an organism
of alternative investment from the European Union managed by a managing body of the
European Union.
3-A The transmission of the communication is accompanied by a statement issued by the CMVM,
certifying that the entity is authorised to manage investment bodies
alternative with the investment strategy in question.
4-A CMVM notifies the entity of the transmission made to the relevant competent authority,
may the entity initiate the marketing of the units of participation in the States-
Host members as of the date of such notification.
5-A CMVM informs of the possibility referred to in the preceding paragraph:
a) The competent authorities of the Member States of origin of the bodies of
alternative investment constituted in another Member State, managed by entity
responsible for the management;
b) The European Securities and Markets Authority as to the
alternative country alternative investment bodies, managed by entity
responsible for the management and managing entity of third country authorised in Portugal;
c) The entities referred to in the previous paragraphs, in the case of bodies of
alternative investment constituted in another Member State managed by entities
third-party gestures authorized in Portugal.
6-The complete notification process and the declaration referred to in paragraphs 1 and 3 are
produced in Portuguese or in the language of current use in the financial sphere
international.
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Article 240.
Substantial change of notified elements
1-The entities responsible for the management and the managing entities of third country
authorized in Portugal to communicate in writing to the CMVM any substantial change
of the elements notified in accordance with Article 238:
a) With at least one month in advance in relation to the date of respect
production of effects, in the case of planned changes; or
b) Immediately, in the case of unforeseen changes.
2-It is correspondingly applicable to the provisions of Article 232 (2) and (3).
3-A CMVM informs immediately as to changes in relation to which it is not
opposite:
a) The competent authorities of the host Member States of the entity
responsible for the management or of the third country managing entity authorized in
Portugal; and
b) The European Securities and Markets Authority, if the
amendments relate to the cessation of the marketing of certain
alternative investment bodies or the marketing of others
additional bodies.
Title IV
From supervision, cooperation and regulation
Article 241.
Supervision
1-A The supervision of the provisions of this General Regime shall compete with the CMVM, safeguarded
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the competences of the Bank of Portugal in respect of:
a) Authorization and prudential supervision of the managing companies provided for in paragraph 1 of the
article 65 and the managing entities of third countries when Portugal is the
State-Member of reference; and
b) Evaluation of information with a view to injuring the accumulation of systemic risks in the
financial system, of risks of disturbance in the markets or risks to the
long-term growth of the economy.
2-The provisions of the preceding paragraph shall be without prejudice to the competence of the CMVM to, in
excecional circumstances, susceptible to disrupting the normal functioning of the
collective investment bodies, determine to the body and respect entity
responsible for the management, depositary or marketer the fulfilment of
additional duties to those provided for in this General Regime, with a view to acauteling the
legitimate interests of the participants.
3-In addition to the provisions laid down in the applicable law as to the exercise of the activity
of supervision, the CMVM may require the auditors or experts to carry out checks and
investigations.
4-The Bank of Portugal and the CMVM establish the appropriate methods to verify that
the entities responsible for the management fulfil the obligations that they impose on them,
taking into consideration the guidelines established by the European Authority of the
Securities and Markets.
5-A The competence for the prudential supervision referred to in paragraph 1 remains even if the
gestural entities referred to therein to exercise their activity in other Member States.
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Article 242.
Supervision of collective investment bodies in securities of the
European Union
1-A CMVM, as the competent authority of the host Member State
of the collective investment body in securities, has powers to take
measures against the same in the event of non-compliance with legal provisions,
regulatory or administrative matters not covered by Directive No 2009 /65/CE of the
European Parliament and of the Council of July 13, 2009 and of the requirements
set out in Articles 199 and 200.
2-Any decision to revoke the authorization or any other serious measure taken
against the collective investment body in securities, or any
suspension of the issuance, from the rescue of the respective units of participation that is to it
imposed, shall be communicated immediately by the CMVM to the authorities of the States-
Host members of the collective investment body in values
securities and the competent authorities of the Member State of origin of the entity
responsible for the management of the same.
3-If the CMVM, as the competent authority of the host Member State of the
collective investment body in securities, has clear motives and
demonstrable to believe that the collective investment body in values
securities whose units of participation are marketed in its territory infringe
the obligations arising from legal provisions passed pursuant to Directive No.
2009 /65/CE of the European Parliament and of the Council of July 13, and not
competent to act, transmits such findings to the competent authorities of the
Home Member State of the collective investment body in values
securities, so that they can take the appropriate measures.
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4-If, notwithstanding the measures taken by the competent authorities of the State-
Member of origin of the collective investment body in securities, in the
sequence of the communication provided for in the preceding paragraph, or by virtue of the character
inappropriate or extemporaneous of these measures, the collective investment body in
securities to continue to act in a manner detrimental to the interests of investors,
the CMVM proceeds from one of the following modes:
a) After informing the authorities of the State-Member State of the body of
collective investment in securities, takes the steps that revels
necessary to protect the interests of investors, including the possibility of
prevent the body from collective investment in securities in the cause of
continue to commercialize the units of participation in national territory; or
b) If necessary, refer the matter to the European Values Authority
Securities and Markets, which may act in the exercise of their competences.
5-A CMVM notifies the European Commission and the European Values Authority
Securities and Markets of the measures taken under paragraph (a) of the number
previous.
Article 243.
Supervision of alternative investment bodies
1-Without prejudice to the provisions of Article 241 (2), the CMVM may also, in the
terms and with the grounds laid down therein, the reasoned application of the
interested, allow for the temporary dispensation of the performance of the duties provided for in the
this General Regime relating to the following subjects:
a) Regime of composition of portfolios, their limits, techniques and management tools
of the alternative investment bodies;
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b) Terms and conditions of financing of alternative investment bodies;
c) Realization of operations with alternative investment bodies and entities
related;
d) Vicissitudes to which they are subject to alternative investment bodies, in
particular with respect to the merger, spinoff, processing, settlement and sharing.
2-A dispensation referred to in the preceding paragraph shall be duly substantiated,
specifically with respect to its instrumental character and necessary for the
protection of the interests of the participants, and to predict their duration, to the maximum extent
of three months, renewable for equal period, and may be accompanied by duties of
information accessories to the CMVM and the participants and be revoked at all times.
Article 244.
Supervision of the activity of the entities responsible for the management and entities
gestures from authorised third countries in Portugal
1-Receiving the CMVM notification of the competent authorities of the Member State of
hosting of entities responsible for the management and managing entities of country
third authorized in Portugal, expressing clear and demonstrable reasons that
support that the same do not meet the obligations arising from rules whose
compliance rests with the Bank of Portugal or the CMVM overseeing, these authorities
take appropriate measures, in particular, if necessary, requesting information
additional to the competent supervisory authorities of third countries.
2-A CMVM immediately informs the Bank of Portugal of the notification respecting the
standards whose compliance lies with the Bank of Portugal overseeing.
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Article 245.
Supervision of activity in Portugal of managing entities of the European Union of
collective investment bodies in securities
1-A CMVM may ask the European Union's managing entities to exercise activity
of management of collective investment bodies in securities in Portugal,
upon the establishment of a branch or under the freedom of provision of
services, the information necessary for the surveillance of compliance with the rules
applicable.
2-A The requirement for information provided for in the preceding paragraph may not be higher than the imposed
to the managing companies provided for in Article 65 (1).
3-The managing entities referred to in paragraph 1 shall ensure that the procedures and rules to which
refer to Articles 86 and 87 allow the CMVM, with respect to the bodies of
collective investment in authorized securities in Portugal, get
directly from those the information referred to in paragraph 1.
4-When the CMVM veris that a managing entity referred to in paragraph 1 that posits a
branch office or pay services on national territory does not comply with the applicable standards,
requires the same to put an end to the irregularity and notifies the competent authority of the
Member state of origin of the managing entity.
5-If the managing body refuses to provide the requested information or not take the
measures necessary to end the irregular situation referred to in the preceding paragraph, the
CMVM communicates that fact to the competent authorities of the State-Member State
of the managing entity, requesting it that, as soon as possible, take the
appropriate arrangements.
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6-If, notwithstanding the measures taken by the competent authorities of the State-
Member of origin of the managing entity or if, due to the fact that such measures are
revealing inappropriate or unable to be applied in Portugal, the managing body
continue to refuse to provide the requested information or continue to fail to comply with the
applicable legal or regulatory provisions, the CMVM, after informing this fact to
competent authority of the Member State-Member of origin, adopts the necessary measures
to prevent or sanction new irregularities and, if necessary, to ban the managing entity
of starting new transactions in Portugal, including, if the service provided by the entity
gestures for the management of a collective investment body in securities, the
requirement that this basket the management of that body.
7-Should the CMVM consider that the competent authority of the State-Member State
of the managing body did not act in an appropriate manner after the notification provided for in paragraph 4,
referred the matter to the European Securities and Markets Authority,
that you can act in the exercise of your competences.
8-In case of urgency, the CMVM, before commencing the procedure provided for in the figures
previous, take the precautionary measures necessary to protect the interests of the
investors or other persons to whom services are provided, giving
knowledge of these measures, with the greatest possible brevity, to the European Commission, to the
European Securities and Markets Authority and the authorities of the
too many Member States affected.
9-A CMVM notifies, immediately, the competent authorities of the Member State of
origin of the managing entity of any problems lying at the level of the body of
collective investment in securities that may affect in material terms a
ability of the managing entity to correctly perform its functions or to
comply with the requirements set out in the terms of Directive 2009 /65/CE of Parliament
European and of the Council of July 13, which are within their competence.
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10-A CMVM informs beforehand the Bank of Portugal of all communications and
measures provided for in the preceding paragraphs.
11-When consulted by the competent authority of the State-Member State of the
managing entity on the revocation of respect for permission, the Bank of Portugal and the
CMVM take the necessary measures to safeguard the interests of the participants,
including banning the managing entity from starting new transactions in Portugal.
12-A CMVM communicates to the European Commission and the European Values Authority
Securities and Markets the number and nature of cases in which they have been
taken measures pursuant to paragraph 5.
Article 246.
Supervision of activity in Portugal of entities managing bodies of
alternative investment
1-A supervision of compliance with the rules laid down in Articles 12 and 14 of the Directive
2011 /61/UE of the European Parliament and of the Council of June 8 on the part of
managing entities of the European Union and of managing entities of third countries
authorized in another Member State is the competence of the CMVM, should these entities
exercise the management or marketing activities of investment bodies
alternative in Portugal, by establishment of branch office.
2-To the supervision of the managing entities of the European Union and of managing entities of countries
third parties authorised in another Member State carrying out the management activity or
marketing of alternative investment bodies in Portugal, by the
establishment of a branch or under the freedom to provide services, it is
correspondingly applicable to the provisions of paragraphs 1, 2, 4 a to 6 and 10 of the previous article.
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3-Case CMVM disagrees with any measure taken by a competent authority
pursuant to paragraphs 5 a to 7 of the preceding Article, may submit the matter to the Authority
European Securities and Markets with a view to obtaining a
consensus solution between the competent authorities involved or a decision
binding of that Authority, pursuant to Article 19 of the Regulation (EU)
n ° 1095/2010 of the European Parliament and of the Council of November 24.
Article 247.
Irregularities of activity in Portugal subject to the supervision of the Member State
of origin or reference
1-If the Bank of Portugal or the CMVM have clear and demonstrable reasons that
support that, relative to the activity in Portugal of Union managing entities
European to generate alternative investment bodies and managing entities of
third countries authorised in other Member States, they are not being fulfilled
legal or regulatory provisions of the jurisdiction of the Member State of origin or
of reference, CMVM shall, after sharing of information with the Bank of Portugal,
to notify that fact the competent supervisory authority.
2-If, despite the initiative provided for in the preceding paragraph, specifically in the face of
inadequacy of the measures adopted or of the non-acting in reasonable time by the authority
competent from the State-Member of origin or reference, the managing entities
continue to act clearly prejudicial to the interests of investors,
for financial stability or for the integrity of the Portuguese market, the Bank of
Portugal or CMVM, after sharing of information between both and information to
competent authority of the Member State-Member of origin or of reference provided by the
CMVM, adopts the measures that prove necessary to protect the interests of the
investors or the orderly operation of the markets, and may, inter alia,
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prevent such managing entities from marketing the units of participation of the
organisms under management.
3-The measures taken in the framework of the procedures laid down in this Article shall be
applicable the provisions of paragraph 3 of the preceding Article.
Article 248.
Infraction by managing entity of alternative investment bodies of country
third authorized in Portugal
1-Should the CMVM consider that a third country managing entity authorized in
Portugal is infringing on the obligations that on it impending notifies the Authority
European Securities and Markets of that fact, indicating their reasons,
as quickly as possible.
2-Being in cause of prudential matters, the communication provided for in the preceding paragraph is
preceded by binding opinion of the Bank of Portugal.
Article 249.
Powers of the European Securities and Markets Authority
1-A request from the European Securities and Markets Authority, the CMVM
takes one of the following measures, as the case:
a) Prohibits marketing in Portugal of units of participation of bodies
of alternative investment under management of third country managing entity not
authorized pursuant to Section V of Chapter I of Title II or of bodies of
alternative investment of third country managed by managing entity of the Union
European, without the notification required by Articles 230, 233 and 235;
b) Imposes on the entities managing third countries restrictions on the management of
alternative investment bodies, should an excessive
concentration of risk in a specific market, at a cross-border level;
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c) Imposes on the entities managing third countries restrictions on the management of
alternative investment bodies, should their activity constitute,
potentially, an important source of counterparty risks for an institution
of credit or other systemically relevant institutions.
2-A CMVM may request the European Securities and Markets Authority
that you reconsider your request.
Article 250.
Cooperation in the supervision of entities managing bodies of investment
alternative from third countries
1-The Bank of Portugal and the CMVM make every effort to, within the framework of
respect competencies, comply with guidelines and recommendations issued by the
European Securities and Markets Authority under Article 16 para.
of Regulation (EU) No 1095/2010 of the European Parliament and of the Council, of 24 of
november with a view to the establishment of coherent, efficient and effective practices
of supervision of the managing entities of third countries.
2-Within a period of two months from the date of issue of an orientation or
recommendation, the CMVM or the Bank of Portugal, as the case may be, should confirm whether
to comply with, or, not complying with, whether or not they intend to comply, and the CMVM shall
inform the European Securities and Markets Authority of the situation
applicable, indicating the reasons for the decision should any of these authorities not comply
or do not intend to comply with this guidance or recommendation.
3-A CMVM transmits a copy of the relevant cooperation agreements that celebrate with
the supervisory authorities of third countries, to the competent authorities of the
Host Member States of the managing body of investment bodies
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alternative in cause.
4-A CMVM transmits, in the terms of the applicable regulatory technical standards, the
information relating to alternative investment bodies received from the
supervisory authorities of third countries in the terms of cooperation agreements or,
if it is the case, in accordance with Art. 245 (6) or 247 (1),
competent authorities of the host Member States of the managing entity in
cause.
5-Should the CMVM consider that a certain cooperation agreement concluded by the
supervisory authorities of third country with the competent authorities of the State-
Reference member of third country managing entity does not comply with the required in the
technical standards for applicable regulations, may submit the matter to the Authority
European Securities and Markets, with a view to obtaining a
consensus solution between the competent authorities involved or a decision
binding of that Authority, pursuant to Article 19 of Regulation (EU) No
1095/2010, of the European Parliament and of the Council of November 24.
Article 251.
Communication of irregularities
1-Should the Bank of Portugal or the CMVM have clear and demonstrable grounds for
suspect that a managing entity of alternative investment bodies commits
or committed acts, not subject to its supervision, contrary to the provisions, in the Directive
n. 2011 /61/UE, of the European Parliament and of the Council of June 8, the CMVM
notifies that fact to the European Securities and Markets Authority and the
competent authorities of the Member State-Member of origin and Member States of
reception in as detailed a way as possible.
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2-When the CMVM is a notification recipient with the content provided for in the number
previous must, in articulation with the Bank of Portugal when they are at issue
prudential matters, ensure that appropriate measures are taken and inform
the European Securities and Markets Authority and the authorities
competent who have notified it of the outcome of such measures and, as far as possible, of the
developments however verified.
Article 252.
Cooperation and exchange of information
1-A CMVM, after consultation of the Bank of Portugal, provides the European Authority with the
Securities and Markets, to the European Systemic Risk Committee and to the
competent authorities of the other Member States the information that is
relevant to the follow-up and response to the potential implications of the activities
of entities managing bodies of concrete alternative investment or of the
set of these in the stability of important financial institutions from the point of view
systemic and in the proper functioning of the markets in which they exercise theirs
activities, pursuant to the Delegated Regulation (EU) No 231/2013 of the Commission
European, of December 19, 2012.
2-A CMVM communicates to the European Securities and Markets Authority and
to the European Committee on Systemic Risk the aggregate data on the activities of the
managing entities of alternative investment bodies that are under the
your supervision.
3-The term of preservation of the personal data constant of information exchanged between the
competent national authorities and those of other Member States may not exceed
five years.
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4-Case the Bank of Portugal, when they are in question prudential matters, or the CMVM
disagree with any measure concerning an assessment, action or omission on the part of
of a competent authority of another Member State in areas in which the
present General Regime requires the cooperation or coordination with the same, the CMVM
may, obtained advice from the Bank of Portugal, when the matter is from the
competence of this, submit the matter to the European Securities Authority and
of the Markets with a view to achieving a consensual solution between the
competent authorities involved or a binding decision of that Authority,
pursuant to Art. 19 of Regulation (EU) No 1095/2010 of the European Parliament
and of the Council, of November 24, 2010.
Article 253.
Cooperation, duty of secrecy and exchange of information
Without prejudice to the provisions on duty of secrecy laid down in the legislation in force, if
a collective investment body has been declared insolvent or its liquidation
forced to have been ordered judicially shall apply the provisions of paragraph d ) of paragraph 1 of the
article 355 of the Securities Code, approved by the Decree-Law No. 486/99, of
November 13.
Article 254.
Regulation
1-Without prejudice to the competences of the Bank of Portugal, it is incumbent on the regulatory CMVM
the provisions of the present General Regime, inter alia, as to the following subjects:
a) From the notion and conditions of operation of collective investment bodies,
specifically with respect to:
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i) Typology of collective investment bodies;
ii) Collective investment bodies with heritage or income
guaranteed and regime of the guarantee, as well as investment policy of the
collective investment bodies in securities of indexes;
iii) Groupings of collective investment bodies;
iv) Autonomous patrimonial compartments of the investment body
collective;
v) Rules relating to the creation of categories of units of participation;
vi) Rules applicable to investment in real estate assets and real estate;
vii) Re-acquisition of units of participation by the investment body
collective;
viii) Terms and conditions of development and evaluation, by the bodies
of real estate investment, of real estate construction projects;
ix) Conditions and limits of renting or other forms of exploitation
onerous real estate fund of the investment fund in the scope of contracts
concluded with the entities provided for in Article 147 (1);
x) Dispensation of the performance of duties by certain types of
collective investment bodies, depending on their characteristics, and
imposition of the fulfillment of others, specifically in respect of
diversification of risk and provision of information;
xi) Rules on the constitution of alternative investment bodies of
main type and feed.
b) From the management activity of collective investment bodies, specifically
with respect to:
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i) Subcontracting of functions understood in the management activity of
collective investment body;
ii) Terms of the remuneration policies;
iii) Management techniques and instruments, including loan operations and
reporting of securities and use of financial instruments
derivatives in the management of the assets of collective investment bodies;
iv) Evaluation of assets and liabilities of investment bodies
collective and calculation of the value of the units of participation;
v) The terms and conditions under which the verification may be required by
external evaluator, of the asset evaluation procedures of the organisms
of collective investment, when the respective entity responsible for the
management has chosen not to appeal to external evaluator;
vi) The criteria, methods and technical standards for valuation of real estate that
integrate the heritage of real estate investment bodies, the
conditions for disclosure of the evaluation reports, as well as of their
submission to the CMVM and the significant amount of improvement works,
magnification and requalification of real estate;
vii) Definition of assessment criteria of the value of volatility;
viii) Registration of operations, on account of investment bodies
collective, on assets admitted to trading on market
regulated carried out outside of regulated market or system
of multilateral trading;
ix) Compensation of participants as a result of errors,
irregularities or other events;
x) Affection of revenue and income paid to the managing entity or other
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entities as a result of the exercise of the activity of that;
xi) Criteria of size, nature and complexity of activities and services
provided by the managing body and investment bodies
managed collective;
xii) Requirements for plurality and turnover of auditors and experts
real estate evaluators;
xiii) Exceeding of limits on investment in cases alheds to the will of the
entity responsible for the management;
xiv) Borrowing limits;
xv) Rules on the professional guarantees of external evaluators and the
register of these;
xvi) Less demanding rules in the composition of the heritage of the
real estate investment bodies, reporting duties and
prevention of conflicts of interest, in cases where the present Regime
General allow it, particularly when they are in real estate for
rehabilitation.
c) Of the information, specifically with respect to:
i) Documents instructor the applications for authorization and approval of
collective investment bodies;
ii) Form and content of the document with the fundamental information
intended for investors;
iii) Contents of the annual report of the depositary on the audit;
developed;
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iv) Reporting duties to the public, the participants, the
CMVM, the managing entities of markets and trading systems
multilateral, by the entities responsible for the management, depositories and
marketing entities or third parties service providers and by these
of each other;
v) Communication by the members of the administration bodies and too much
responsible for the investment decisions of the bodies of
collective investment over transactions;
vi) Accounting of collective investment bodies;
vii) Terms and conditions in which collective investment bodies may
make public, in any form, measures or indexes of profitability and
risk of collective investment bodies and the rules to which it obeys the
calculation of these measures or indexes;
viii) Provision of information to the CMVM on compensation of the participants in
consequence of errors, irregularities or other events;
ix) Terms applicable to the communication of transactions by the entities
responsible for the management of the CMVM;
x) Exercise of voting rights;
xi) Information for statistical purposes;
d) From the marketing of units of participation and conditions of admission to the
negotiation, specifically with respect to:
i) Forecasting of other commercializing entities, duties of entities
commercializers, the conditions to which they are subject, the minimum content of the
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marketing contract, the requirements relating to the different means of
marketing and rules relating to underwriting and rescue or reimbursement;
ii) Marketing in Portugal among unskilled investors of
units of participation of alternative investment bodies of the
European Union and third country;
iii) Payments in kind to the collective investment body or the
participants;
iv) Conditions of admission and negotiation of the units of participation of
collective investment bodies in market;
e) From the vicissitudes of the collective investment bodies, specifically in what
respects to:
i) Significant modification of the policy of investments, of the policy of
income distribution and calculation term or disclosure of the value
of the units of participation;
ii) Fission and transformation of collective investment bodies;
iii) Opinion of the auditor, for the purpose of increases and reductions of units of
participation of closed real estate investment bodies;
iv) Formalities and deadlines for dissolution and settlement of bodies of
collective investment, requirements of the liquidators, content of the accounts of
settlement and respect of auditor's report and forms of release of the
duty to pay the proceeds of the settlement;
v) Conditions of suspension of underwriting and rescue of units of
participation.
2-In the regulation provided for in the preceding paragraph, the nature, the
dimension and the complexity of the activities exerted.
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Title V
Sanctionatory regime
CHAPTER I
Illicit in particular
Article 255.
Common provisions
1-The counterordinations provided for in this General Regime shall apply to the following fines:
a) Between € 25000 and € 5000000, when they are qualified as very serious;
b) Between € 12500 and € 2500000, when they are qualified as serious.
2-Without prejudice to the provisions of the paragraph a) of Article 261 (1), where the amount
corresponding to double the economic benefit resulting from the infractions provided for in the
articles 256 and 257 is determinable and superior to the maximum limit of the applicable fine,
this limit is raised to that amount.
3-The counterordinations provided for in the following articles respect both the violation of
duties enshrined in this regime and respect regulation, such as the violation of
duties enshrined in legislation, national or the European Union, and respect
regulation, in respect of the matters regulated in this regime.
4-If the law or regulation requires that the duty be met in a given period
it is considered that there is default as soon as the fixed deadline has been exceeded.
5-It is considered as not disclosed to information whose disclosure has not been effected
through the appropriate means.
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Article 256.
Very serious counterorders
Without prejudice to the provisions of the general schemes relating to the activity of the institutions of
credit, financial companies and the financial instruments market, constitutes
very serious counterordinance, the practice of the following typical illicit facts:
a) The communication or provision of information to the CMVM or the Bank of Portugal that
be not true, complete, objective, current, clear and licite or the omission of that
communication or provision;
b) The communication or dissemination of information to the public that is not true,
complete, objective, current, clear and licite or the omission of that communication or
disclosure;
c) The communication or dissemination of information to participants that is not
true, complete, objective, current, clear and licite or the omission of that communication
or disclosure;
d) The exercise of managerial functions or the marketing of bodies of
collective investment whose constitution has not been authorized or whose
authorization has lapsed or has been revoked or has not been the object of
notification;
e) The practice of acts pertaining to collective investment bodies in activity
without authorization, registration or for which there has been prior opposition from the
competent authority;
f) Non-collaboration with the authorities of supervision or disturbance of the exercise of the
supervision activity;
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g) The carrying out of veiled or prohibited operations;
h) The failure to meet the levels of own funds;
i) The failure to comply with the rules on the eligibility of the assets of the portfolios of the
collective investment bodies;
j) The default of limits on investment or indebtedness by body
of collective investment;
k) The failure to comply with the rules on risk assessment and management;
l) The failure to comply with the rules on the valuation and valuation of assets;
m) The lack of acting independently and in the exclusive interest of the
participants;
n) The non-equitable, unprofessional or discriminatory treatment of the participants;
o) The omission of payment of values due to participants relating to the rescue,
to the refund or distribution of income;
p) Failure to comply with legal or regulatory duties before participants of
collective investment bodies;
q) The failure to fulfil the duties provided for in the constitutive documents of the
collective investment body;
r) The failure to comply with the rules on the heritage autonomy of the bodies of
collective investment;
s) The resolution of situations of conflicts of interests in a non-equitable manner or
discriminatory;
t) The failure to comply with too many rules regarding conflicts of interest;
u) The omission of adoption of policies and procedures of sanction of irregularities
internal susceptible to affect the stability and integrity of the market;
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v) The failure to comply with the rules on the implementation, processing and registration of operations;
w) The failure to comply with the rules on the transmission, aggregation and affectation of orders;
x) The failure to comply with the rules on the guard of assets;
y) The subcontracting of depositary functions outside the admitted cases;
z) The failure to comply with the rules on the reuse of assets;
aa) The undue collection of costs to the collective investment body or the
participants;
bb) The omission of elaboration, defective elaboration or the omission of communication of the
report and accounts of the collective investment bodies under management.
Article 257.
Serious counterorders
Without prejudice to the provisions of the general schemes relating to the activity of the institutions of
credit, financial companies and the financial instruments market, constitutes
serious counterordinance, the practice of the following typical illicit facts:
a) The omission of use of the language required in information disclosed to the
participants;
b) The omission of communication of information due to the depositary of the body of
collective investment or the communication of incomplete information or without the
quality due;
c) The failure to comply with the duty of intervention and validation by the auditor;
d) The omission of holding additional own funds required by law,
regulation or determination of the competent authority;
e) The omission of conclusion of professional insurance contract of liability
civil;
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f) The failure to comply with the rules relating to the vicissitudes of the bodies of
collective investment;
g) The omission of conservation, during the required time limit, of the documentation and records
relative to collective investment bodies;
h) The failure to perform duties relating to the exercise of the function of depositary and of
marketer not punished as very serious counterordinance;
i) The realization of advertising actions without the observance of the required requirements;
j) Failure to perform duties relating to entities and activities related to
collective investment bodies and open membership pension funds
individual, provided for in national or European Union legislation or in respect of
regulation, not punished as very serious counterordinance.
CHAPTER II
General provisions
Article 258.
Responsibility for the counterordinations
1-By the practice of the counterordinations provided for in this scheme may be
held accountable natural persons, collective persons, regardless of the
regularity of its constitution, societies and associations without legal personality.
2-Collective persons and the entities that are equated to them in the previous number are
responsible for the counterordinations provided for in this regime when the facts
have been practiced, in the exercise of the respective duties or in their name or by their
account, by the members of their social bodies, mandators, representatives or
workers.
3-A The responsibility of the collective person is excluded when the agent attests against orders or
express instructions from that.
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4-The members of the governing body of the collective persons and equipared entities,
as well as those responsible for the direction or surveillance of areas of activity in which it is
practiced some counterordinance, incur the sanction provided for by the author,
especially attenuated, when, knowing or owing to the practice of the
infraction, do not adopt the appropriate measures to terminate you immediately, other than
what a more serious sanction kayaks them by force of another legal provision.
5-A The responsibility of the collective persons and equiparted entities does not exclude the
individual responsibility of the agents ' respective agents.
6-Do not preclude the individual liability of the agents under the circumstance of the legal type of the
infraction require certain personal elements and these only if they check in person
collective, in the equating entity or in one of the actors involved, nor the circumstance of,
being required for the agent to practice the fact in his or her interest, to have the agent acted in the
interest of outrain.
7-A unvalidity or ineffectiveness of the act that serves as a foundation of the acting of the agent in
name of outrain does not prevent the application of the provisions of the preceding paragraph.
Article 259.
Forms of the infraction
1-The unlawful of mere social ordinance provided for in this General Regime shall be charged
the title of dolo or negligence.
2-In the event of negligence, the minimum and maximum limits are reduced to half.
3-A attempt by any of the illicit mere social ordinance described in the present
General Regime is punishable, with the fine applicable to the illicit consummate, especially
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attenuated.
Article 260.
Compliance with the breach of duty
1-Whenever the illicit of mere social ordinance results from the omission of a duty, the
payment of the fine or the fulfilment of the ancillary sanction do not waive the offender
of the line of duty, if this is still possible.
2-The offender may be subject by the competent authority for the process of
counterordinance to the injunction of fulfilling the duty in question.
3-If the injunction is not met within the prescribed time limit, the agent incurs the targeted sanction
for the very serious counterorders.
Article 261.
Ancillary sanctions
1-Cumulatively with the fines, they can be applied to those responsible for any
counterordinance, in addition to those provided for in the general regime of the illicit of mere ordinance
social, the following ancillary sanctions:
a) Seizure and loss of the object of the infraction, including the product of the benefit obtained
by the offender through the practice of counterordinance with observance of the willing
in Articles 22 to 26 of the Decree-Law No. 433/82 of October 27, as amended by the
Decrees-Law No 356/89, of October 17, 244/95, of September 14 and
323/2011, of December 17 and by Law No 109/2001 of December 24;
b) Temporary interdiction of the exercise by the infractor of the activity to which the
counterordinance respects;
c) Inhibition of the exercise of functions of administration, direction, managerial or surveillance and,
in general, of representation of any financial intermediaries in the framework of
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some or of all kinds of intermediation or entity activities
related to collective investment bodies;
d) Publication by the competent authority for the process of counterordinance, the
expensing of the offender and in idoidal locations for the fulfillment of the purposes of
general prevention of the legal system, securities markets or
other financial instruments and the financial system, of the sanction applied by the
practice of counterordinance;
e) Revocation of the authorisation or cancellation of the registration required for the financial year
of activities related to collective investment bodies.
2-The sanctions referred to in points b ) and c ) of the previous number cannot be duration
greater than five years, counted from the definitive condemnatory decision.
3-A publication referred to in para. d ) of paragraph 1 may be done in full or by excerpt,
as it is decided by the competent authority for the counterordinance process.
Article 262.
Determination of the applicable penalty
1-A The determination of the concrete fine and the ancillary sanctions is done in the function of the ilicitude
concrete of the fact, of the fault of the agent, of the benefits obtained and the requirements of
prevention, while also taking into account the singular or collective nature of the agent.
2-In the determination of the concrete ilicitude of the fact and guilt of the collective persons and
equated entities, will meet, among others, the following circumstances:
a) The danger or the damage caused to investors, to the securities market
or other financial instruments or the financial system;
b) The occasional or repeated character of the infraction;
c) The existence of concealment acts aimed at hindering the discovery of the infraction;
d) The existence of acts of the agent intended for, by his or her initiative, to repair the damage or
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obviate the dangers caused by the infraction.
3-In the determination of the concrete ilicitude of the fact and fault of the natural persons,
serves, in addition to those referred to in the preceding paragraph, to the following circumstances:
a) Level of responsibility, scope of functions and sphere of action in the collective person
in cause;
b) Intention to obtain, for you or for others, an illegitimate benefit or cause
damage;
c) Special duty to not commit the infraction.
4-In the determination of the applicable sanction are still taken into account the economic situation
and the previous conduct of the agent.
Article 263.
Fines, costs and economic benefit
1-When infractions are also attributable to the entities referred to in paragraph 2 of the article
258., these respond in solidarity with the payment of the fines, the expense or the
another burden associated with the sanctions applied in the counterordinance process that
are the responsibility of the individual agents mentioned in the same precept.
2-The product of the fines and the economic benefit seized in the processes of
counterordinate revert in full to the Compensation System of the
Investors, created by Decree-Law No. 222/99, of June 22, independently
of the stage in which it becomes final or transite on trial the sentencing decision.
3-In the event of a conviction, it is due to the defendants ' expense.
4-Being several the defendants, the expense is rematch by everyone in equal parts, only being
due to the value concerning the defendants who are convicted.
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5-The expense is intended to cover the expenses incurred in the process, specifically with
notifications and communications, means of recording and copies or certificates of the process.
6-The reimbursement for the expenses referred to in the preceding paragraph shall be calculated on 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.
Article 264.
Subsidiary law
Unless otherwise established in this general scheme, it applies to the
counterordinations in it provided for and to the processes to the same concerning the general regime of the
illicit of mere social ordinance, approved by the Decree-Law No. 433/82 of October 27,
changed by Decrees-Law No 356/89 of October 17, 244/95, of September 14 and
323/2011, of December 17 and by Law No. 109/2001, of December 24 (General Regime
of the Contraordinations).
CHAPTER III
Procedural provisions
Article 265.
Competence
1-A competence for the processing of the counterordinations, application of the fines and
ancillary sanctions, as well as of the precautionary measures of nature provided for in this scheme
general, belongs to the CMVM or the Bank of Portugal, in accordance with the provisions of the
article 241.
2-A CMVM and the Bank of Portugal may request the delivery or undertake the seizure,
freezing or inspection of any related documents, values or objects
with the practice of unlawful facts, regardless of the nature of their support,
proceed to sealing of objects not seized in the premises of persons or entities
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subject to your supervision, as well as soliciting any persons and entities all the
clarifications and information, in the strict extent to which the same is revealed
necessary for the enquiries or the instruction of processes of their competence.
Article 266.
Comparisons of witnesses and experts
1-To witnesses and experts who do not appear on the designated day, time and place
for the due diligence of the process, nor justifying the lack in the act or the five working days
immediate, is enforced by the competent authority for the counterordinance process
a pecuniary penalty up to 10 units of account.
2-The payment is effected within 10 working days of the notification, under penalty of
whether to carry out coercive collection.
Article 267.
Absence of the accused
The lack of comparisons of the accused shall not preclude the counterclaim process from following the
your terms.
Article 268.
Notifications
1-The notifications in the process of counterordinance are made by registered letter with
notice of prescription, directed towards the head office or the domicile of the recipients and their
judicial mandators, or personally, if necessary through the police authorities.
2-A notification to the defendants of the procedural act which imputes him the practice of counterordinance,
as well as from the decision that applies to it fines, ancillary sanction or some measure
cautionary, is done in the terms of the previous number or, when the defendant is not
found or refuse to receive the notification, per advertisement published in one of the papers
from the locality of its registered office or the last known residence in the Country or, in the case of there
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there shall be no newspaper or of the accused not having a seat or residence in the Country, in one of the papers
journals from Lisbon.
Article 269.
Precautionary measures
1-When revs necessary for the instruction of the process, for the defense of the market of
securities or other financial instruments, the financial system or to
the tutelage of the interests of investors, the competent authority for the process of
counterordinance may determine one of the following measures:
a) Preventive suspension of some or some activities or functions exerted by the
argued;
b) Subjection of the exercise of functions or activities to certain conditions,
necessary for such exercise, in particular the performance of duties of
information.
c) Apprehension and freezing of values, regardless of location or institution
in which the same are found.
2-A The determination referred to in the previous number beams, depending on the cases:
a) Until its revocation by the authority that determined it or by judicial decision;
b) Up to the commencement of fulfilment of ancillary sanction of effect equivalent to the measures
predicted in the previous number.
3-A The determination of preventive suspension may be published by the authority that the
issued.
4-When, in accordance with paragraph 1, the total suspension of activities or of the
duties exercised by the accused and this one come to be condemned, in the same process, in
ancillary sanction that consists in interdiction or inhibition of the exercise of the same
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activities or functions, will be discounted by whole in the fulfillment of the ancillary sanction
the length of time of the preventive suspension.
Article 270.
Warning procedure
1-When the counterordinance consists of sanctable irregularity from which they do not have
damages for investors, for the securities market or of
other financial instruments or for the financial system, the competent authority
for the counter-ordering process can warn the offender, notifying him to sanction the
irregularity.
2-If the offender does not remedy the irregularity in the time limit for it fixed, the process of
counterordinance continues its normal tramway.
3-Sanada the irregularity, the process is shelved and the warning becomes definitive, as
condemnable decision, and may not the same fact return to be appreciated as
counterordinance.
Article 271.
Sumarest process
1-When the reduced gravity of the infraction and the fault of the agent justifies it, it may
competent authority for the counterordinance process, before charging
formally the accused, communicate to him the decision to proclaim an admoestation or of
apply a fine whose concrete measure does not exceed the triple of the minimum threshold of the
abstracted frame abstractly predicted for the infringement.
2-Can, still, be determined to the defendants who adopt the behavior legally
required, within the time limit that the competent authority for the process of
counterordinance to the effect fixe.
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3-A The decision provided for in paragraph 1 is written and contains the identification of the accused, the description
summary of the imputed facts, the mention of the legal provisions violated and ends with the
admoestation or the indication of the concretely applied fine.
4-The accused is notified of the decision and informed that he / she assists him the right to refuse,
within 10 days, and of the consequence provided for in the following number.
5-A The refusal or silence of the accused within this period, the application of any due diligence
supplementing, the failure to comply with the provisions of paragraph 2 or the non-payment of the fine in the
deadline of 10 days after the notification referred to in the preceding paragraph shall determine the immediate
continue the process of counterordinance, by becoming without effect the said decision
in the n. paragraphs 1 a to 3.
6-Having the defendants proceeded to comply with the provisions of paragraph 2 and payment of the
cofine that has been applied to it, the decision becomes final, as a decision
condensation, and may not the fact return to be appreciated as counterordinance.
7-The decisions rendered in summary proceedings are irrecurrable.
Article 272.
Suspension of the execution of the penalty
1-A competent authority for the counterordinance process may suspend, total or
partially, the execution of the sanction.
2-A suspension may be conditional on the fulfilment of certain obligations,
specifically those deemed necessary for the regularization of illegal situations, à
repair damage or the prevention of hazards to the securities market or
of other financial instruments, for investors or for the financial system.
3-The time of suspension of the sanction is set between two and five years, counting its
beginning from the date on which the deadline of the judicial challenge of the decision is exhausted
condensation.
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4-A suspension does not cover costs.
5-A The suspension of the execution of the sanction is revoked, becoming this effective, if during the
period of suspension:
i) The accused practise any counterordinance provided for in this General Regime and
if it reveals that the purposes that were on the basis of the suspension could not, by
medium of it, be achieved; or
ii) The accused violates the obligations that have been imposed on him as a condition for the
suspension of the sanction.
6-Elapsed the time of suspension without this having been the object of revocation in the
terms of the preceding paragraph, the penalty whose execution had been deemed to be extinguished
suspended.
Article 273.
Judicial challenge
1-Received the challenge of a decision handed down under the present general scheme
by the competent authority for the counterordinate process, this refers the autos
to the Public Prosecutor's Office within 20 days, and may piece together allegations.
2-Without prejudice to the provisions of Article 70 of the General Regime of Contraordinations, the
authority that delivered the decision may still put together other elements or information
that it considers relevant to the decision of the cause, as well as offering means of proof.
3-The court may decide without a trial hearing, if there is no opposition from the
argued, from the Public Prosecutor's Office or the authority that delivered the decision.
4-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 administrative stage of the
process of counterordinance.
5-A The authority that delivered the decision may participate in the trial hearing through
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of representative appointed for the purpose.
6-A dismissals of the prosecution by the prosecutor's office depends on the concordance of the
authority that delivered the decision.
7-A The authority that delivered the decision has legitimacy to appeal autonomously from the
rulings rendered in the challenge process that admit appeal, as well as to
respond to interposed resources.
8-It is not applicable to the counterordinance processes instituted and decided in the terms
of the present General Regime the prohibition of reformatio in pejus , owing to this information
record of all final decisions that admit to challenge or appeal.
Article 274.
Competent court
The court of competition, regulation and supervision is the competent court to know
the appeal, review and enforcement of decisions or any other measures legally
susceptible to challenge being taken in the context of this general scheme, in the process of
counterordinance.
Article 275.
Prescription
1-The procedure for the counterordinations provided for in this regime shall prescribe in the
term of five years.
2-Without prejudice to other causes of suspension or interruption of prescription, the
prescription of the procedure by counterordinance suspending itself since the date of the omission
of provision of true, clear and complete elements or information in violation
of the duty of collaboration until their provision.
3-The limitation period of the sanctions is five years from the day on which it becomes
definitive or transiting on trial the decision that determined its application.
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4-Without prejudice to other causes of suspension or interruption of prescription, the
prescription of the procedure by counterordinance suspending itself from the notification of the
dispatch that proceeds to the preliminary examination of the appeal of the decision which applies sanction
up to the notification of the final decision of the appeal.
5-When infractions are punishable with fine up to € 1500 000.00, dealing with
collective persons, or with fine up to € 500 000.00, dealing with natural persons, the
suspension provided for in the previous number cannot exceed 30 months.
6-When infractions are punishable with a fine of more than € 1500 to 000.00, treating
of collective persons, or with a fine exceeding € 500 to 000.00, treating persons
singular, the suspension provided for in paragraph 4 shall not exceed the 5 years.
7-The time limit referred to in paragraphs 5 and 6 is high for double if there has been recourse for the
Constitutional court.
Article 276.
Infractions competition
If the same fact constitutes both crime and counterordinance, the accused is
held responsible for both infractions, instituting separate processes to be decided by the
competent authorities.
Article 277.
Duty to notify
The competent authority for the application of the ancillary sanctions revocation of the
authorization or cancellation of the registration, if it is not also the competent entity for
the practice of such acts, should communicate to the latter the crime or counterordinance in question,
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their specific circumstances, the sanctions applied and the state of the process.
Article 278.
Disclosure of decisions
1-Elapsed the period of judicial challenge, the decision of the competent authority for the
process of counterordinance that convicates the agent by the practice of one or more
very serious or serious counterordinations is disclosed through your internet page,
by excerpt drawn up by you or in full, even if you have been required to
judicial challenge, being, in this case, made express mention of that fact.
2-A Judicial decision confirming, change or revoke the sentencing or court decision
of 1. th instance is communicated immediately to the authority that delivered it and
compulsorily disclosed in the terms of the previous number.
3-A The disclosure provided in the previous figures does not contain personal data in the acetion of the
point ( a ) of Article 3 of Law No 67/98 of October 26.
4-The provisions of paragraphs 1 and 2 may not be applied in the very summing processes, when
take place the suspension of the sanction, the ilicitude of the fact and the fault of the agent are
decreases or when the competent authority for the counterordinate process
consider that the disclosure of the decision may be contrary to the interests of investors,
severely affect financial markets, the financial system, or cause damage
concrete, to persons or entities involved, manifestly disproportionate to
relation to the seriousness of the imputed facts.
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ANNEX I
(as referred to in Article 78 (3) of the General Regime)
Policy for Remuneration
1-In the establishment and application of total remuneration policies, including the
discretionary pension benefits, concerning the categories of collaborators,
in particular the executive members of the social bodies, those responsible for
assumption of risks and control functions and the collaborators whose total remuneration the
put in the same remuneration level as the one provided for in the previous categories,
as long as the respective professional activities have a material impact on the profile of
risk of the investment bodies under management, the managing entities must comply,
in addition to the principles referred to in Article 78 (1), the principles set out below
in an appropriate manner to its internal size and organisation and to the nature, scope and to
complexity of its activities:
a) The remuneration policy must be compatible with the business strategy and the
goals, values and interests of the managing body and the investment bodies
collective by you managed and respected investors, and include measures aimed at
avoid conflicts of interest;
b) The watchdog of the managing body approves and periodically reviews the
general principles of the remuneration policy and is responsible for the surveillance of its
implementation;
c) The implementation of the remuneration policy should be subject to an internal analysis
centralized and independent, with a minimum annual periodicity, having as
objective the verification of compliance of the policies and procedures of
remuneration adopted by the supervisory body;
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d) Collaborators who carry out control functions must be remunerated in
function of the achievement of the objectives associated with their functions, independently
of the performance of the respective structure units;
e) The remuneration of collaborators who perform risk management functions and
control should be supervised directly by the remuneration committee;
f) The definition of the total value of the variable component of the remuneration shall be
through the combination of the evaluation of the performance of the collaborator, which must
consider criteria of a financial and non-financial nature, and of the performance of the
structure unit or of the collective investment body concerned with the
overall results of the managing entity;
g) The evaluation of the performance shall process in a multiannual framework appropriate to the
duration of the collective investment bodies managed by the managing body,
ensuring that the evaluation process is based on long-term performance
and that the payment of the remuneration components of it dependent is
reparty over a period that takes into consideration the policy of
reimbursement of the collective investment bodies per se managed and the respects
investment risks;
h) No guaranteed variable remuneration may be granted, except when
hiring of new collaborators, only in the first year of activity;
i) The managing entities must establish appropriate ratios between the components
fixed and variable of the total remuneration of the collaborators, representing the
fixed component a sufficiently high proportion of the total remuneration, the
end of allowing the application of a fully flexible policy concerning the
variable component of remuneration, including the possibility of non-payment
of the same;
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j) 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;
k) The benchmarking of the performance used to compute the variable component of the
remuneration shall provide for adjustments considering the various types of risks,
current and future;
l) Without prejudice to the legal form of the collective investment body and its
constitutive documents, with respect to the variable component of remuneration,
at least half of its amount, whether that component is deferred or not,
must consist of units of participation or shares of the investment body
collective in cause, equivalent capital instruments, instruments indexed to
equities or equivalent financial instruments, save if the management of the body of
collective investment represent less than 50% of the total portfolio managed by the
gestures entity, in which case the minimum of 50% does not apply.
m) The instruments referred to in the preceding paragraph shall be subject to a policy of
proper retention, designed to align incentives with the interests of the
managing entity and collective investment bodies by you managed and
respects participating, and CMVM may impose restrictions on types and structures
of these instruments or prohibit certain instruments, depending on the most appropriate.
n) The payment of a substantial part, corresponding to at least 40%, of the
variable component of the remuneration, shall be deferred by a suitable period
depending on the duration and policy of reimbursement of the investment body
collective in cause and correctly fixed depending on the nature of the risks of the
same collective investment body. That period should be by the
less three to five years, save if the duration of the collective investment body
is lower.
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o) The right to payment of the variable component of the remuneration subject to
deferment should be assigned on a proportional basis over the period of
deferment. Being the amount of the particularly high variable component,
at least 60% of that amount shall be paid in a deferred manner;
p) The variable component of remuneration, including the deferred part of that
pay, it should only constitute an acquired right or be paid if it is sustainable
in the light of the financial situation of the managing body and grounded in the light of the
performance of the structure unit concerned, of the investment body
collective and the collaborator in question.
q) Without prejudice to labour or civil law, the variable component of remuneration
should be changed should the performance of the managing entity or the body of
collective investment regrida or is negative, taking into consideration both the
current remuneration as the reductions in the payment of amounts whose right to
receipt already constituted, including by means of aggravation schemes
(" malus ") or recovery (" clawback ");
r) The policy on the discretionary pension benefits should be compatible with
the business strategy, the goals, the values and the long-term interests of the
managing entity and the collective investment bodies by you managed;
s) In case the cessation of the collaborator's activity occurs before the reform, the benefits
discretionary pension discretionary that is held are held by the managing entity by
a period of five years, in the form of instruments defined in the paragraph l ).
t) When the collaborator achieves the reform situation, the discretionary benefits of
pension are paid in the form of instruments set out in paragraph l ), without prejudice
of the possibility of being established a period of unavailability, upon
retention by the managing body, five years;
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u) The previously provided rules may not be removed, specifically through
of the use by the collaborators of any covering mechanism of
risk biased to mitigate the effects of alignment by the risk inherent in the
remuneration modalities or through the payment of the variable component of the
remuneration through instrumental entities or other methods with
equivalent effect.
2-The principles set out in the preceding paragraph shall apply to all types of remuneration
paid by the managing entity, to all amounts paid directly by the
collective investment body, including performance commissions, and to all
transfers of units of participation of the investment body.
3-Significant gestural entities in terms of their size or size of the
collective investment bodies by you managed, of internal organisation and of the
nature, scope and complexity of the respective activities, should set up a committee of
remunerations. It is incumbent on the remuneration committee to formulate informed judgements and
independent on the policy and practices of remuneration and on the incentives created
for the purposes of risk management.
4-The remuneration committee shall be responsible for the preparation of decisions concerning the
remuneration, including decisions with implications in terms of risks and management of the
risks of the managing entity or of the collective investment body concerned, which
should be taken by the watchdog. The remuneration committee is chaired
by a member of the board of directors who does not perform executive functions in the
managing entity in question. The remuneration committee shall be composed of members of the
board of directors that do not perform executive functions in the managing body
in cause.
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ANNEX II
SCHEME A
(as referred to in Article 158 (2) of the General Regime)
1. Information concerning the
investment fund
1. Information concerning the
gestures society, including
an indication as to whether the
gestures society is
domiciled in a State-
Member other than the
State-Member of origin
of the body of
collective investment.
1. Information concerning the
investment society
1.1. Name 1.1. Name or
social denomination, shape
legal, registered office and
central administration if this
is different from the head office
statuary
1.1. Name or denomination
social, legal form, headquarters
statuary and administration
central if this is different from the
registered office
1.2. Date of the constitution of the
investment fund.
Indication of duration, if it is
limited
1.2. Date of the constitution
of the society. Indication of the
duration, if it is limited
1.2. Date of the constitution of the
society. Indication of duration,
if it is limited
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1.3. If the society manages
other organisms of
collective investment, indicate
these other organisms
1.3. If the society of
investment has
heritage compartments
autonomous, indicate these
heritage compartments
autonomous.
1.4. Indication of the place where
whether it can obtain the regulation of
management, if it is not attached, and
the periodic reports
1.4. Indication of the place where
if you can get the documents
constitutive, if they are not
appended, and the reports
periodicals
1.5. Succinct indications
relating to the tax regime
applicable to the fund of
investment, if they have
interest to the participant.
Indication of the existence of
retentions at the source effectuated
on profits and more-worthies
paid for the fund of
investment to participants
1.5. Succinct indications
relating to the applicable tax regime
to society, if they have an interest
for the participant. Indications of the
existence of retentions at the source
effected on the profits and
more-worth paid by the society
to the participants
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369
1.6. Closing date of the accounts
and frequency of distributions
1.6. Date of closing of the accounts
and frequency of distributions
1.7. Identity of people
in charge of the verification of the
financial information referred to
in Article 131 para.
1.7. Identity of people
in charge of the verification of the
financial information referred to in the
article 131 para.
1.8. Identity and functions
in the society of the members
of the administration bodies
and of supervision. Mention of the
main activities
exerted by these people
out of society, provided that
be meaningful
relatively to the latter
1.8. Identity and functions in the
society of the members of the
organs of administration and of
supervision. Mention of the
main activities exerted
by these people outside the
society, as long as they are
significant relatively to this
last
1.9. Amount of capital
subscribed with indication of the
capital realized
1.9. Capital
1.10. Mention of nature and the
main characteristics of the
units of participation, with,
notably, the following
indications:
1.10. Mention of nature and the
main characteristics of the
actions, with, inter alia, the
following indications:
nature of the right (real, from
credit or other) that the
part represents
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370
original or certified titles
representative of these
securities, registration in registration
or in account,
original or certified titles
representative of these
securities, registration in registration
or in account,
characteristics of the units of
participation: nominations
or to the holder. Indication
of the values eventually
predicted
characteristics of the shares:
nominations or the
bearer. Indication of the
values eventually
predicted
description of voting rights
of the participants, if it exists
description of voting rights
of the participants
circumstances in which the
settlement of the fund of
investment can be
decided and modalities of the
settlement, namely,
as to the rights of the
participants
circumstances in which the
settlement of the society of
investment can be
decided and trashes of the
settlement, namely,
as to the rights of the
participants
1.11. Possible indication of the
exchanges or markets in which
the units of participation are
quoted or negotiated
1.11. Possible indication of the
exchanges or markets in which
shares are quoted or
negotiated
1.12. Modalities and conditions
of subscribing to the units of
participation
1.12. Modalities and conditions
of subscribing to the shares
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1.13. Modalities and conditions
of rescue of the units of
participation and cases in which it can
be suspended
1.13. Modalities and conditions
of rescue of the shares and cases in
that can be suspended. If the
investment society has
different compartments
autonomous patrimonial, indicate
the modalities of passage of
a heritage compartment
autonomous to another to which the
investors can appeal,
well as the commissions
applicable in these cases
1.14. Description of the rules that
regulate the determination and the
affectation of profits
1.14. Description of the rules that
regulate the determination and the
affectation of profits
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1.15. Description of the objectives
of investment from the fund
common investment
including the goals
financial (for example:
search for more-worth in capital
or of profits), of the policy of
investment (for example:
specialization in certain areas
geographic or sectors
industrial), limits of this policy
of investment and indication of the
techniques and instruments or of the
powers in the matter of
susceptible loans from
be used in the management of the
common investment funds
1.15. Description of the objectives
of investments from society
including the goals
financial (for example:
search for more-worth in capital
or of profits), of the policy of
investment (for example:
specialization in certain areas
geographic or sectors
industrial), limits of this policy
of investment and indication of the
techniques and instruments or of the
powers in the matter of
susceptible loans from
be used in the management of the
society
1.16. Rules for the assessment
of the assets
1.16. Rules for the assessment
of the assets
1.17. Determination of prices
of underwriting and rescue or
reimbursement of the units of
participation, in particular:
1.17. Determination of prices
of underwriting of rescue or
refund of the shares, in
special:
method and frequency of the calculation
of these prices,
method and frequency of the calculation
of these prices,
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373
indication of the relative charges
to underwriting operations
and rescue of the units
of participation
indication of the relative charges
to underwriting operations
and rescue of the shares
indication relative to the means,
locations and frequency with
that these prices are
published
indication of the means, places and
frequency with which these
prices are publicados1
1.18. Indication concerning the
mode, the amount and the calculation
of the remuneration in charge of the
investment fund and in
benefit of the gestures society,
of the depositary or of third parties and
of the reimbursements by the fund
common of investment, of
all expenses, to society
gestures, to the depository or to
third parties
1.18. Indication concerning the
mode and calculation of the
remunerations payable by the
society to its leaders and
members of the organs of
administration and surveillance,
to the depositary or to third parties and
of the reimbursements effected by the
society of all expenses,
to its leaders, to the depositary
or to third parties
2. Information relating to the depositary:
2.1. Name or social designation, legal form, registered office and central administration
if it is different from the registered office.
2.2. Main activity.
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3. Indications on consultancy firms or on investment advisors
external, provided that the resource to its services is provided for by the contract and
remunerated by the assets of the collective investment body:
3.1. Identity or social object of the firm or name of the consultant.
3.2. Elements of the contract with the managing company or the investment company
susceptible to interest the participants, except for those relating to remunerations.
3.3. Other significant activities.
4. Information on the measures taken to make the payments to the participants, the
reimbursement of the units of participation as well as the diffusion of the relative information
to the collective investment body. This information shall, in any case,
be given in the Member State where the collective investment body is
established. In addition, when the participation units are commercialized
in another Member State, the information referred to above is premised
in respect of this Member State and included in the prospeit.
5. Other information relating to investments:
5.1. Historical evolution of the results of the collective investment body (if
applicable)-this information may be included in the prospeetus or to it apensas.
5.2. Profile of the type of investor to which the collective investment body is headed.
6. Information of economic character:
6.1. Any expenses or commissions, other than the charges referred to in point 1.17,
establishing a distinction between those supported by the participant and those paid with the
assets of the collective investment body.
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SCHEME B
(as referred to in Article 161 (1) of the General Regime)
Information to be entered in the periodic reports
I. Demonstration of heritage
securities,
bank balances,
other assets,
total assets,
passive,
net value of inventory.
II. Number of participation units in circulation
III. Net worth by social share
IV. Portfolio titles distinguishing between:
a) The securities admitted to the official quotation of a stock exchange;
b) Securities traded on another regulated market;
c) The newly issued securities, referred to in para. b ) of paragraph 1
of Article 169;
d) The other securities referred to in Article 169 (7) of the Article;
and reparty according to the most appropriate criteria, taking into account the policy of
investment of the collective investment body (for example: second
economic criteria, geographical, by foreign exchange, etc.), as a percentage of the asset
net; it is appropriate to indicate, for each of the values referred to above, the
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its share relative to the total assets of the investment body
collective.
Indication of movements occurring in the composition of the securities in portfolio in the
course of the reference period.
V. Indication of movements occurring in the assets of the investment body
collective in the course of the reference period, including the following data:
income from investment,
other income,
management costs,
deposit costs,
other charges, fees and taxes,
net profit,
distributed and reinvested profits,
increase or decrease in the capital account,
the most valuable or least valuable investments,
any other alteration affecting the assets and liabilities of the body of
collective investment,
the trading costs borne by an investment body
collective associated with the transactions concerning the elements of your wallet.
VI. Comparative table for the last three financial years and including for each
exercise, at the end of this:
the net value of global inventory,
the net value of inventory by social part.
VII. Indication, by category of operations, in the acetation of Article 170, carried out by the
collective investment body in the course of the reference period, of the
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amount of the commitments that arise therefrom.