Key Benefits:
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Proposal for Law No 262 /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
harmonised of the activities carried out in the European Union by those managers, including the
which are registered in a Member State and those with registered office in a third country, associated with
prediction of the passport regime of the management activity and marketing of organisms
of alternative investment.
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.
In accordance with the provisions of Directive No 2011 /61/UE, the notion of body of
alternative investment includes investment bodies in venture capital and, in this
sense, the transposition of the Directive determines the revision of the legal regime of the capital of
risk.
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By this law, it is thus partially transposed into the national regime the Directive
n. 2011 /61/UE, as well as Directive No 2013 /14/UE, of the European Parliament and of the
Council, of May 21, 2013, on investment fund managers
alternatives with regard to excessive dependence on risk ratings,
amending 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 realization of plans
of occupational pensions, and Directive No 2009 /65/CE and Directive No 2011 /61/UE.
Additionally, it aims to ensure the implementation of the Regulation (EU) No 345/2013, of the
European Parliament and of the Council of April 17, 2013 (Regulation (EU)
n. 345/2013), and of Regulation (EU) No 346/2013, of the European Parliament and of the
Council, of April 17, 2013 (Regulation (EU) No 346/2013), which came to provide for the
marketing in the European Union of venture capital funds and funds from
social entrepreneurship, with the assignments "EuVECA" and "EuSEF", respectively.
For the purpose of this, Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013,
lay down common rules regarding the composition of the portfolio of the funds operating
under those assignments, to their eligible investment objectives, to the instruments of
investment that you can use and the categories of investors eligible to invest in them.
The indicated scheme is applicable to managing entities not covered by the Directive
n. 2011 /61/UE, i.e. entities whose total assets under management do not exceed the thresholds
in it predicted, from € 100000000, with leverage, and € 500000000, unleveraged.
Take advantage, yet to introduce in the national legal planning the entrepreneurship
social, thus allowing the operators on the market to have the possibility not
only to commercialize such funds in the European Union, with the designation "EuSEF",
but also to commercialize social entrepreneurship bodies in the territory
national.
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Additionally, it introduces the specialized alternative investment that, by its
flexibility, pursuits the goal of nurturing the national market and the competitiveness of
national entities in the face of entities from other Member States that may market
the alternative investment bodies specialized in the European Union.
In order to facilitate the access and understanding of the standards applicable to venture capital, to
social entrepreneurship and specialist alternative investment, as well as of the
European venture capital funds and the European funds of social entrepreneurship,
chose to effect the review of the legal regime of venture capital, in it by integrating the
subjects of social entrepreneurship and specialized investment.
Thus, this Law repeals the Decree-Law No. 375/2007 of November 8 and approves the
legal regime of venture capital, social entrepreneurship and investment
specialized (RJCRESIE).
With respect to venture capital activity not covered by Directive No 2011 /61/UE
it remains the simplified national regime that was already envisaged in the Decree-Law
n. 375/2007, of November 8. So the venture capital funds, the investors in
venture capital and venture capital companies remain subject to prior registration in
Commission of the Securities Market (CMVM) and the fulfillment of a set
of simplified requirements in terms of conditions of access to the activity and rules of
organization and exercise. Such a scheme shall apply, with the specificities provided for in
regulation of CMVM, social entrepreneurship societies, the funds of
social entrepreneurship and, as well, to alternative investment funds
specialized, as to the rules laid down for venture capital funds that do not
refer to prohibitions on investment.
The managing entities not covered by the scope of the Directive
n. 2011 /61/UE are still subject to the duty of reporting in the terms required in that
Directive for the follow-up effects of systemic risk.
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In the matter of social entrepreneurship, they prevein, in the national regime, the funds of
social entrepreneurship and social entrepreneurial societies.
Social entrepreneurial funds can be marketed to investors
qualified and, under conditions to be defined in regulation of the CMVM in particular concerning
the maximum amounts of investment, together with unqualified investors.
Social entrepreneurship societies have as an object the management of own portfolio and
the management of social entrepreneurship funds, including the European funds of
social entrepreneurship designated "EuSEF".
In specialized alternative investment matter, the object of the organisms of
specialized investment is the investment in assets of any nature, not
each asset represents more than 30% of the global net worth value and are targeted
exclusively to qualified investors. The alternative investment bodies
specialized can take on the contractual form of alternative investment funds
specialized or the society-based form of specialized alternative investment societies.
In transposition of Directive No 2011 /61/UE, the RJCRESIE provides for a regime applicable to the
entities whose management is located above the relevant thresholds set in that Directive and which
become subject to more demanding organization and exercise requirements as to the management of the
alternative investment bodies, highlighting those that respect the assessment of
assets, remuneration policy, subcontracting, depositories, and transparency duties.
In accordance with Directive No 2011 /61/UE, the managing entities cannot
accumulate the activities of own portfolio management (internal management) and management of
alternative investment bodies (external management). In consequence, societies
of venture capital can only maintain the broad social object when the amounts under
management do not reach the relevant thresholds.
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They may, however, choose to change the object and social denomination by passing the same to
correspond solely with internal management or external management, or by keeping the object
social, owing in the latter situation to alienate heritage in sufficient amount to not
exceed the values covered by Directive No 2011 /61/UE.
Wanting to maintain high amounts under management, these societies should apply
authorization to operate pursuant to Directive No 2011 /61/UE and pass the corresponding
one of the new societary types of strict social object, the fundraising societies of
venture capital, the object of which is the management of investment bodies in venture capital, and
the investment companies in venture capital whose object is the realization of
investments in venture capital.
In line with the exclusive competence of the CMVM for venture capital companies up to
at the date, exclusive competence is conferred on this authority for the authorisation and supervision
of investment corporations in venture capital and fund holding companies of
venture capital, which become subject to the most demanding organization and exercise requirements
arising from Directive No 2011 /61/UE.
In compliance also with Directive No 2011 /61/UE, these societies are subject to
minimum initial capital requirements, from € 300000 in the case of investment companies
in venture capital and from € 125000 in the case of the capital fund holding companies of
risk. In addition, the need for supplementary own funds is expected when the
overall net value of portfolios under management is greater than € 250000000 correspondents
to 0.02% of the surplus amount. The scheme of social capital and applicable own funds
to investment corporations in venture capital shall apply by remission to the companies of
specialized alternative investment.
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It is allowed that social entrepreneurship activity can be developed by
societies that already operate in the market. It is also the case to predict that the societies of
venture capital that does not exceed the relevant thresholds of Directive No 2011 /61/UE
can, in addition to own portfolio and venture capital funds, also manage the
funds from social entrepreneurship and the specialized alternative investment funds
and, as well, the European regime funds with the EuVECA and EuSEF designation.
The activity of social entrepreneurship situated below the relevant thresholds of the Directive
n. 2011 /61/UE can still be developed by the new entrepreneurial society
social that constitutes the parallel figure of the venture capital society for the area of the
social entrepreneurship and that can accumulate the internal management and management activities
of funds from social entrepreneurship, including EuSEF.
Above the relevant thresholds of the Directive No 2011 /61/UE, the funds of
social entrepreneurship can be managed by fund managing companies of
investment furnishings. In this way, social entrepreneurship is promoted, allowing
that the same can be developed by larger gestural societies.
Although not required by Directive No 2011 /61/UE, it is opposed to decreasing the social capital
of the venture capital companies not covered by the Directive of Directive No 2011 /61/UE,
of the current € 750000 (in the case of own portfolio management and capital fund management
of risk) or € 250000 (in case of fund management only) for € 125000, passing the
provide for a regime of own funds similar to the one that stems from the Directive's regime
n. 2011 /61/UE. This amendment favors competitiveness with managing entities of
other Member States of the European Union, on the one hand, and ensure creditworthiness
upon the introduction of a fund scheme of its own, aligning it with the intended for
the remaining managing entities subject to Directive No 2011 /61/UE. The indicated regime is
applicable for remission to societies of social entrepreneurship.
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It is emphasized that the societies not covered by Directive No 2011 /61/UE may opt
( opt-in ), by subjecting themselves to the most aggravated regime resulting from the Directive No 2011 /61/UE,
specifically if they wish to benefit from the passport that the Directive provides.
In terms of cross-border connections, the CMVM is still the competent authority for the
authorization and prudential supervision of the third country managing entities that manage
investment bodies in venture capital, in social entrepreneurship or
alternative specialized in relation to which Portugal is the reference Member State,
regardless of whether those manage or commercialize investment bodies in
capital of risk in another Member State.
On the operation of the passport of Directive No 2011 /61/UE, including the
cooperation between entities and exchange of information, the legal regime is already planned
in the General Regime of Collective Investment Organisms, passed by the Law
n. [Reg. PL 323/2014], therefore, for reasons of simplification, it sends such a scheme to apply
and the reproduction of the same standards in the RJCRESIE is avoided.
In the framework of Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013, it was
committed to Member States the setting of sanctionatory standards in the event of infringement of the
Regime in them, as well as the designation of the competent authority for the purposes of the
same regime.
In this context, CMVM shall be designated as the competent authority for the registration of
entities whose amounts under management do not exceed the relevant thresholds provided for in the
Directive No 2011 /61/UE wishing to use the EuVECA or EuSEF designation in the
marketing of the funds constituted and managed in the terms provided for in these
Regulations, as well as for your supervision.
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Finally, the RJCRESIE adopts a sanctionatory regime in which to tipify the illicit of
mere social ordering and the applicable sanctions, by applying, by remission, the rules
substantive and procedural provisions set out in the Securities Code, approved by the
Decree-Law No. 486/99 of November 13. The sanctionatory regime adopted confers
sanctionatory tutelage to norms on venture capital, social entrepreneurship and
specialized alternative investment provided for in the RJCRESIE and equally to those provided for
in the aforementioned European Regulations.
The RJCRESIE is complemented by the rules provided for in the delegated and implementing acts of the
Directive No 2011 /61/UE, specifically the Delegated Regulation (EU) No 231/2013,
of the Commission of December 19, 2012 with regard to exemptions, general conditions
of operation, depositories, lever effect, transparency and supervision, the
Implementing Regulation (EU) No 447/2013 of the Commission of May 15, 2013, which
establishes the procedures for the managers of alternative investment bodies
opting to be covered by the Directive No 2011 /61/UE, and the Regulation of
Implementation (EU) No 448/2013, of the Commission, of 15 of May 2013, which sets out a
procedure to determine the Member State of reference of a body manager
of alternative investment of third country under the Directive No 2011 /61/UE.
In the application of the RJCRESIE 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.
The National Council of Financial Supervisors was heard, the Bank of Portugal, the
Commission of the Securities Market, the Insurance Institute of Portugal, the
National Data Protection Commission, the Portuguese Association of Funds of
Investment, Pensions and Patrimias, the Portuguese Association of Banks, the Association
Portuguese Capital of Risk and Development and the Portuguese Association of
Insurers.
The hearing of the National Consumption Council was promoted.
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Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Object
1-A present law:
a) It partially transposes to the internal legal order:
i) The Directive No 2011 /61/UE, of the European Parliament and of the Council, of 8
of June 2011, relating to investment fund managers
alternative changes to Directive No 2003 /41/CE of the European Parliament
and of the Council, of June 3, 2003, 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, 2010; and
ii) The Directive No 2013 /14/UE, of the European Parliament and of the Council, of 21
of May 2013, relating to investment fund managers
alternatives with regard to excessive dependence on the
risk notations amending Directive No 2003 /41/CE, of Parliament
European and of the Council of June 3, 2003 on activities and the
supervision of institutions to carry out occupational pension plans,
the Directive No 2009 /65/CE, of the European Parliament and of the Council, of 13
of July 2009, which coordinates the laws, regulations and
administrative relating to some collective investment bodies
in securities (UCITS) and the Directive No 2011 /61/UE, of the
European Parliament and of the Council of June 8, 2011;
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b) It ensures the implementation, in the internal legal order, of the Regulation (EU)
n 345/2013, of the European Parliament and of the Council of April 17, 2013,
relating to European venture capital funds and Regulation (EU)
n 346/2013, of the European Parliament and of the Council of April 17, 2013,
relating to the European funds of social entrepreneurship.
2-In concretization of the provisions of the a ) of the preceding paragraph, the present law proceeds to
review of the regime applicable to the exercise of investment activity in venture capital,
approved by Decree-Law No. 375/2007 of November 8, approving a new
legal regime, which also includes the investment activity in
social entrepreneurial and specialist alternative investment.
3-In concretization of the provisions of the b ) of the preceding paragraph, the present law proceeds to
designation of the competent authority for the supervision of the managing entities of the
European venture capital funds ("EuVECA") and of the European funds of
social entrepreneurialism ("EuSEF") as well as to the definition of the sanctionatory regime
applicable to the managing entities of the EuVECA and EuSEF for the violation of the standards of the
such Regulations.
Article 2.
Approval of the legal regime of venture capital, social entrepreneurship and the
specialized investment
It is hereby approved, in annex to this Act and that it forms an integral part, the Legal Regime of the
Risk Capital, Social Entrepreneurship and Specialized Investment, forward
abbreviately designated "Legal Regime".
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Article 3.
Transitional provisions
1-Risk capital companies in exercise at the date of entry into force of this Law,
whose assets under management exceed the thresholds set out in Article 6 (2) of the Regime
Legal, must, within three months after the date of entry into force, take all the
measures necessary to comply with the provisions of the Legal Regime, approved in annex to the
present diploma.
2-The entities referred to in the preceding paragraph shall still, within the period referred to therein, apply for
authorization from the Securities Market Commission (CMVM) on the terms
of Title III of the Legal Regime, which is approved in annex to this Law.
3-Notwithstanding the provisions of the preceding paragraphs, the entities referred to therein may
maintain the management of those same assets with no need to apply for authorization, since
that do not carry out any additional investment after that date.
4-The entities referred to in paragraph 1 that manage only venture capital funds whose period
of subscription 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 these bodies with no need to comply with the provisions of the
Legal Regime, approved in annex to this Law, with the exception of the provision in the
referred to as the annual report and, if applicable, of the obligations arising from
position of control in unlisted companies and in stock issuers companies
admitted to trading on a regulated market, or to submit application for
authorization.
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5-A requirement for a specified duration provided for in the Legal Regime, approved in annex to the
present law, is applicable to existing indefinite duration venture capital funds
at the date of the entry into force of this Law, and shall be fixed in the respect of the Regulation
of management the period of duration of the same.
6-The applications for the registration of venture capital funds and venture capital companies
pending on the date of entry into force of this Law shall suit the scheme
provided for in the Legal Regime, approved in annex to this diploma, and too much standards
regulatory.
7-Legal or contractual remissions to the Decree-Law No. 375/2007 of November 8,
consider themselves to be made for the corresponding provisions of the Legal Regime, approved
in annex to this Law.
Article 4.
Abrogation standard
The Decree-Law No. 375/2007 of November 8 is repealed.
Article 5.
Entry into force
1-Without prejudice to the provisions of the following paragraphs, this Law shall enter into force in 30
days after its publication.
2-On the date fixed by the delegated act to be adopted by the European Commission pursuant to the
n Article 67 (6) of Directive No 2011 /61/UE of the European Parliament and of the Council,
of June 8, 2011, concerning the managers of alternative investment funds
shall enter into force the provisions of the annexed Legal Regime relating to:
a) Authorization and supervision of third country managing entities of bodies
of investment in venture capital, investment bodies in
social entrepreneurship or alternative investment bodies
specialized in Portugal;
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b) Marketing of investment bodies in venture capital, bodies
of investment in social entrepreneurship or investment bodies
specialized alternative of third countries in the European Union by entities
gestures provided for in points b ) and c ) of Article 1 (1) of the Legal Regime and
managing entities of the European Union, as provided for in the j ) of paragraph 1 of the
article 2 of the General Regime of Collective Investment Organisms, approved
by Law n. [Reg. PL 323/2014];
c) Marketing of investment bodies in venture capital, bodies of
investment in social entrepreneurial or investment bodies
specialized alternative constituted in a Member State of the European Union and
in third countries in the European Union by entities managing third countries;
and
d) Management of venture capital investment bodies, bodies of
investment in social entrepreneurial or investment bodies
specialized alternative of the European Union in the European Union by entity
third country gestures.
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)
Legal Regime of the Capital of Risk, Social Entrepreneurship and the
Specialized Investment
Title I
Investment activity in venture capital, in social entrepreneurship and in
specialized alternative investment
CHAPTER I
General provisions
Article 1.
Object
The present Legal Regime regulates the exercise of investment activity through:
a) Companies of venture capital;
b) Managing companies of venture capital funds;
c) Investment companies in venture capital;
d) Venture capital funds, including European venture capital funds
designated "EuVECA", for the purposes set out in Regulation (EU) No
345/2013, of the European Parliament and of the Council of April 17, 2013;
e) Investors in venture capital;
f) Societies of social entrepreneurship;
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g) Funds from social entrepreneurship, including European funds from
social entrepreneurship designated "EuSEF", in the terms and for the effects
provided for in Regulation (EU) No 346/2013 of the European Parliament and of the
Council, of April 17, 2013;
h) Specialized alternative investment societies; and
i) Specialized alternative investment funds.
Article 2.
Common rules
1-Notwithstanding the provisions of paragraph b ) of Article 293 (1) of the Code of Values
Securities, approved by the Decree-Law No. 486/99 of November 13, the societies
referred to in the previous article are not financial intermediaries.
2-The societies referred to in the previous article have headquarters and central administration in Portugal.
3-The references in this scheme to units of participation should be understood in a manner
cover shares of collective investment bodies in a society-shaped manner, thus
how references to participants should be understood so as to cover shareholders
of the same organisms, unless the contrary result from the provision itself.
4-The societies referred to in the previous article act independently and in the exclusive
interest of the participants.
Article 3.
Investment in venture capital
1-Investment in venture capital is considered to be purchased, for a period of time
limited, of equity instruments and capital instruments alheio in
societies with high potential for development, as a way to benefit from the
respects valorisation.
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2-Investment companies in venture capital and venture capital funds are
alternative closed investment bodies that jointly assign themselves
"investment bodies in venture capital".
Article 4.
Investment in socia entrepreneurship l
1-It is considered investment in social entrepreneurship the acquisition, by period of
limited time, equity instruments and alhedrum capital instruments
in societies that develop suitable solutions for social problems, with the
goal to achieve quantifiable and positive social incidences.
2-Societies of social entrepreneurship have as the main object the achievement of
investments in social entrepreneurship and, in the development of the respect
activity, can carry out the operations provided for in Article 9 (1), as well as manage
social entrepreneurship funds, including European entrepreneurial funds
social designated "EuSEF", in the terms and for the purposes set out in the Regulation
(EU) No 346/2013, of the European Parliament and of the Council of April 17, 2013.
3-Social entrepreneurial funds are alternative investment bodies that
can be marketed to qualified investors and, under conditions to be defined
in regulation of the CMVM in particular concerning maximum amounts of
investment, together with unskilled investors.
4-A The firm of social entrepreneurship societies includes the expression or abbreviation,
respects, "Social Entrepreneurship Society" or "SES", the which, or other
that with them become confused, they cannot be used by other entities.
5-Denominations of social entrepreneurship funds contain the expressions
"Social Entrepreneurship Fund", or the abbreviation "FES" or others that, through
regulation of the CMVM, are foreseen for modalities of funds of
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social entrepreneurship.
6-Social entrepreneurial funds can be managed by societies of
social entrepreneurship, by venture capital societies and managing societies of
investment funds furnishings.
7-Societies of social entrepreneurship and social entrepreneurship funds
the rules laid down for venture capital corporations and for funds are applicable
of venture capital provided for in Title II, with the specificities provided for in
regulation of CMVM.
8-The funds of social entrepreneurship managed by fund holding companies of
investment furnishings stay subject to the provisions of Chapter IV of Title III.
Article 5.
Specialized alternative investment
1-An estimated alternative investment is considered to be purchased for a period of time
limited assets of any nature, and may not each asset represent more of the
that 30% percent of the respective global net worth.
2-Specialized alternative investment societies and investment funds
specialized alternative are closed alternative investment organisms that in
set if assigning "specialized alternative investment bodies".
3-The regulation of management of specialized alternative investment bodies
concretiza, among others:
a) The type of assets in which they can invest;
b) The respects rules of operation, specifically the conditions of
underwriting and rescue, the existence and competence of advisory committees or
investments and external advisors;
c) The maximum or minimum investment limits as a function of the overall net value
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of the specialized alternative investment body.
4-Specialized alternative investment bodies are marketed only
next from qualified investors.
5-Specialized alternative investment funds can be managed by:
a) Companies of venture capital;
b) Entities legally empowered to manage alternative investment bodies
in securities closed under the terms and conditions provided for in paragraph 2 of the
article 65 of the General Regime of Collective Investment Organisms, approved
by Law n. [Reg. PL 323/2014];
c) Managing companies of furniture investment funds; and
d) Managing companies of venture capital funds.
6-To the specialized alternative investment funds managed by the entities referred to
in the points a ) and b ) of the preceding paragraph shall apply to the rules laid down for the funds
of venture capital provided for in Title II that do not refer to prohibitions on investment,
with the specificities provided for in regulation of the CMVM.
7-Specialized alternative investment funds managed by the said entities
in the points c ) and d ) of paragraph 6 shall be subject to the provisions of Chapter IV of Title III.
8-Specialized alternative investment societies are applicable the rules provided for
for investment companies in venture capital, and their designation should contain
the expression "Specialized Alternative Investment Society" or the abbreviation
"SIAE", which, or others that with them confuse, cannot be used by
other entities.
9-A specialized alternative investment society that is not self-managed can be
managed by society manager of investment funds furnishings, upon contract
written.
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10-A The denomination of the specialized alternative investment bodies contains the
expression "Specialized Alternative Investment Society" or " Fund of
Specialized Alternative Investment ", or the abbreviation" FIAE ".
11-Only specialized alternative investment bodies can integrate into your
name the expressions and abbreviations referred to in the preceding paragraph.
Title II
Activity of venture capital companies below the relevant thresholds and the
investors in venture capital
CHAPTER I
Conditions of access
Article 6.
Scope of application
1-This title applies to venture capital corporations and capital funds of
risk managed by these, by regional development societies and by entities
legally qualified to manage alternative investment bodies in values
closed securities as well as to investors in venture capital.
2-The assets under management of venture capital corporations may not exceed, in total, the
following thresholds:
a) € 100000000, when wallets include assets acquired through recourse to the
leverage effect;
b) € 500000000, when wallets do not include assets acquired through the
recourse to the leverage effect and in relation to which there are no rights of
reimbursement that can be exercised for a period of five years to be counted
of the date of the initial investment.
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3-For the purposes of the provisions of the preceding paragraph, leverage effect shall be deemed to exist
when the position at risk of the own portfolio or the funds in venture capital is
augmented by any method, be it through borrowing in
cash or in securities, from recourse to positions on derivatives or by
any other means.
4-Risk capital companies notify the CMVM as soon as the thresholds set out in the
n. 2 are exceeded.
5-In case the amounts under management exceed the thresholds referred to in paragraph 2 in no way
temporary, as provided for in Article 4 of the Delegated Regulation (EU)
n ° 231/2013 of the European Commission of December 19, 2012, the societies of
venture capital dispose of the 30-day period, counted from the date on which they are exceeded
the thresholds, to reduce the amount under management for the permitted values or to
submit application for authorisation as an investment company in venture capital
or as a managing company of venture capital funds, in the terms provided for in the
title III.
6-Constituting grounds for cancellation of registration by the CMVM the non-compliance of the
provisions of the previous number.
7-For the purposes of the provisions of this Title, the existence of a qualified participation
and domain and group relation shall be determined in the terms of the General Regime of the
Collective Investment Bodies, passed by Law n. [Reg. PL 323/2014].
Article 7.
Registration and prior communication
1-A the constitution of venture capital funds, as well as the beginning of activity of the
investors in venture capital and venture capital companies, depend on
prior registration in the CMVM.
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2-The record referred to in the preceding paragraph does not imply, on the part of the CMVM, any
warranty as to the content and constant information of the respected documents
constitutive.
3-The application for the registration of investors in venture capital and the capital companies of
risk should be instructed with the following updated elements:
a) Certificate of the Conservatory of the Commercial Register;
b) The date of constitution and date foreseen for the commencement of the activity;
c) The venture capital funds and own portfolio that the venture capital society
intends to manage and respect investment strategies, in the terms provided for in the
Article 5 of the Delegated Regulation (EU) No 231/2013 of the European Commission,
of December 19, 2012;
d) The statutes;
e) The place of the headquarters and identification of branches, agencies, delegations or other forms
places of representation;
f) The subscribed social capital and the social capital realized;
g) The identification of the single partner or holders of qualified participations;
h) The members of the social bodies;
i) Internal regulation, in the case of venture capital society;
j) Declaration of suitability and means;
k) Questionnaire and statement of suitability of each qualified participation holder
and member of the social body, or the single partner, in the case of investors in capital
of risk;
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l) Criminal record and curriculum vitae of holders of qualified participation and of the
members of the social bodies, or the single partner, in the case of investors in
capital of risk.
4-The application for the registration of venture capital funds shall be instructed with the following
elements:
a) The denomination;
b) Identification of the managing entity;
c) The target date for the constitution;
d) Project of management regulation of the venture capital fund;
e) Project of the contract to be concluded with the depositary and respect statement of
acceptance.
5-A The registration decision is notified to the applicants within 15 days of the date of the
prescription of the application or, if applicable, of the supplementary information that has been
requested by the CMVM.
6-A lack of notification within the period referred to in the preceding paragraph constitutes undue
tacit of the request.
7-A CMVM shall refuse the records referred to in paragraph 1 if:
a) The application has not been instructed with all documents and elements
necessary;
b) False statements have been provided;
c) The requirements relating to the suitability of the members of the members are not fulfilled
social bodies and holders of qualified shareholdings of the investors in
venture capital and venture capital corporations.
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8-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 of the process, when appropriate, and to se
pronounce as to the appreciation of the CMVM.
9-Constitutions basis of cancellation of registration by the CMVM:
a) The verification of facts that would preclude the registration, if those facts have not been
sands within the prescribed time;
b) The registration has been obtained with recourse to false statements or any other
irregular medium;
c) The society or investor in venture capital does not initiate activity within 24
months after the recetion of the communication of granting the registration by the CMVM, the
cessation of activity for at least six months or the disconformity between the
object and the activity effectively exercised by the entity concerned;
d) The serious or systematic violation of legal, regulatory or constant standards
of the constitutive documents, when the interest of the participants or the defence
of the market justifying it;
e) The venture capital fund shall not constitute within 12 months of the date
of the communication of the granting of the registration by the CMVM.
10-A CMVM, at the request of the duly substantiated managing body, may extend the
deadlines referred to in points c ) and and ) of the previous number.
11-Changes to the elements that integrate the applications for registration must be communicated
to CMVM within 15 days, owing to the changes or reconduct of the members of the
social organs and the changes concerning holders of qualified shareholdings to be
instructed with the elements set out in the subparagraphs g ), h ), k ) and l ) of paragraph 3.
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12-For the purposes of the instruction of the applications for registration, as well as of communications
supervenients, it is not required to submit documents that are up-to-date
together with the CMVM or that this one can obtain in official publications.
13-The registration of investors in venture capital with the CMVM is not public.
14-Are subject to mere prior communication to the CMVM the constitution of capital funds
of risk and the commencement of activity of investors in venture capital whose capital is not
put together by the public and whose holders of the capital are only investors
qualified or, regardless of their nature, when the minimum value of the capital
by these subscribed to be equal to or greater than € 500000 by each investor
individually considered.
15-A communication referred to in the preceding paragraph shall contain the elements established in the
n. paragraphs 3 and 4, and the amendments to the same shall be communicated to the CMVM under the terms of the
n. 11.
16-A The communication referred to in paragraph 14 cees no effect in the situations provided for in the
points c ) a and ) of paragraph 9.
17-Risk capital companies whose assets under management do not exceed the thresholds
provided for in Article 6 (2) may choose to apply for the permit provided for in the
title III, under the terms set out in the Implementing Regulation (EU) No 447/2013 of the
Commission, of May 15, 2013, in which case the scheme provided for in the said title
will be entirely applicable.
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Article 8.
Suitability of members of the social bodies and holders of shareholdings
qualified from investors in venture capital and the capital companies of
risk
1-The sole partner of the investor in venture capital and the members of the social bodies and the
holders of qualified participations from venture capital companies must gather
conditions that guarantee their sound and prudent management.
2-In the appreciation of the idoneity must cater to the way the person manages
habitually business or exercise the profession, in particular on the aspets that reveal
inability to decide in a thoughtful and judicious way, or tendency to not
to meet punctually to their obligations or to have incompatible behaviours
with the preservation of market confidence.
3-Among other attentionable circumstances, it is considered to be indicted for lack of suitability the
the fact that the qualified participation holder or the member of the social organ has been:
a) Convicted in the process-crime, specifically, by the practice of crimes against the
heritage, including by burla, abuse of trust and infidelity, for the crimes
of corruption, money laundering, manipulation of the market, abuse of
information or crimes provided for in the Code of Commercial Societies;
b) Identified as person affected by the qualification of insolvency as culposa,
pursuant to Articles 185 to 191 of the Code of Insolvency and Recovery
of Companies;
c) Convicted in the process of counterordinance intended by the CMVM, Bank of
Portugal or Insurance Institute of Portugal.
4-It is not considered to be the elderly the person who dolly to pay false statements or
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inaccurate on relevant facts in the scope of the assessment of suitability.
Article 9.
Social object and authorized operations
1-Risk capital societies and investors in venture capital have as an object
principal the realization of investments in venture capital and, in the development of
respects activity, can carry out the following operations:
a) Invest in equity instruments as well as in securities or
convertible, permutable rights or which confirm the right to its acquisition;
b) Investing in alhedrum capital instruments, including loans and credits, das
companies in which they participate or in which they are proposing to participate;
c) Investing in hybrid instruments of the societies in which they participate or in which if
proponents to participate;
d) Provide guarantees for the benefit of the societies in which they participate or in which if
proponents to participate;
e) Apply your treasury surpluses in financial instruments;
f) Carry out financial operations, particularly of risk coverage, necessary
to the development of the respect activity.
2-Risk capital societies have yet as the main object the management of:
a) Venture capital funds, including those that are eligible for marketing
of the European venture capital funds with the designation "EuVECA", nos
terms and to the effects set out in Regulation (EU) No 345/2013, of the
European Parliament and of the Council of April 17, 2013;
b) Social entrepreneurial funds, including those eligible for
marketing of European social entrepreneurship funds with the
designation "EuSEF" in the terms and for the purposes set out in Regulation (EU)
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n 346/2013, of the European Parliament and of the Council of April 17, 2013; and
c) Specialized alternative investment funds.
3-Risk capital companies may still invest in units of participation of
venture capital funds under the terms of Article 29.
4-Risk capital corporations and investors in venture capital can only have
by accessory object the development of the activities that prove necessary to the
pursuit of its main object, in relation to the societies per se participates or, in the
case of venture capital corporations, to venture capital funds that are under
its management, namely:
a) Provide services of assistance to technical, financial, administrative and
commercial of the participating companies, including those for the purpose of obtaining
financing by such societies;
b) Carry out feasibility studies, investment, financing, policy of
dividends, valuation, reorganization, concentration or any other form of
rationalization of business activity, including the promotion of markets, the
improvement of production processes and the introduction of new technologies, since
that such services are provided to those companies or in relation to which
develop projects aimed at the acquisition of shareholdings;
c) Provide prospetion services of interested in the making of investments in these
participations.
5-Risk capital funds may carry out the operations referred to in paragraph 1 and invest
in investment bodies in venture capital, including organisms not
constituted in Portugal.
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Article 10.
Prohibited operations
1-Risk capital companies, investors in venture capital and funds of
venture capital is vetted:
a) The realization of operations unrelated to the pursuit of your object
social or with the political respect of investments;
b) The investment in securities admitted to trading on a market
regulated that exceed 50% of the active respect;
c) The investment in venture capital, for period of time, followed or interpolated,
greater than 10 years;
d) The acquisition of rights on immovable property, save from the necessary to its
own facilities in the case of venture capital and investor societies
in venture capital.
2-Risk capital corporations and venture capital funds are similarly vetted:
a) The investment of more than 33% of the value available for investment, applied
or not, in a society or group of societies, limit this awounded at the end of the
period of two years on the date of the first investment held for
portfolio, on the basis of the acquisition value;
b) The investment, in the case of venture capital funds, of more than 33% of its
active in another venture capital fund or, in the case of capital companies of
risk, of more than 33% of its asset in venture capital funds managed by
other entities;
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c) The investment, in any form, in societies that dominates the society of
venture capital or the managing entity of the venture capital fund or that with
these maintain a prior group relationship to the investment in capital of
risk;
d) The granting of credit or the provision of guarantees, in any form or
modality, with the purpose of financing underwriting or the acquisition of any
securities issued by the venture capital company, by the fund of
venture capital, by the respective managing entity or by the companies referred to in the
previous point.
3-The current treasury operations carried out with companies that dominate the
venture capital society or the managing entity of the venture capital fund or that
with these maintain a prior group relationship to investment in venture capital
are not considered as investment.
4-In case the exceeding of the limits provided for in the preceding paragraphs result from the assignment of
goods, dation in fulfillment, judicial sale or any other legal means of
fulfillment of obligations or intended to ensure such compliance, shall proceed-
if to respect divestment in term of not more than two years.
5-Execionally, the CMVM may authorise, upon reasoned application, and
provided that it does not result in damage to the market or to the participants:
a) The overtaking of the limit referred to in ( b ) of paragraph 1,
b) The extension of the time limit of the investment referred to in the c ) of paragraph 1,
c) The maintenance in portfolio by the risk capital society of the assets
for which the default of the limit set out in the
point ( a ) of paragraph 2, for an additional period of one year.
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6-Do not apply the provisions of paragraph c ) of n. 1 a participations in companies that have
by object the development of the activities referred to in paragraph 4 of the previous article, up to the
limit of 10% of the asset of venture capital corporations and investors in capital
of risk.
7-The venture capital funds that meet the characteristics provided for in paragraph 14 of the
article 7 are waived from the observance of the provisions of the paragraph a ) and b ) of paragraph 2.
8-Where they are not expressly provided for in the fund management regulation
of venture capital, lack the approval, through deliberation taken in assembly
of participants by a majority of the votes, the business between the venture capital fund and
the following entities:
a) The managing entity;
b) Other funds managed by the managing entity;
c) The societies referred to in paragraph c ) of paragraph 2;
d) The members of the social bodies of the managing body and the societies referred to in the
point ( c ) of paragraph 2;
e) Those which are integrated by members of the social bodies of the entities referred to
in the points a ) and c ), when they do not build out of the portfolio of the venture capital fund.
9-Do not have a right to vote, in the assemblies of participants referred to in the preceding paragraph,
the entities mentioned therein, except when they are the only holders of units of
participation of the venture capital fund.
10-Applied, with due adaptations, the provisions of paragraphs 8 and 9 to the business effectuated
by the venture capital societies.
11-Compete to the venture capital society and the managing entity of the capital fund of
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risk to know the circumstances and relationships provided for in points a ) and c ) of paragraph 2 and in paragraph 8.
CHAPTER II
Venture capital companies
Article 11.
Legal form, representation and social capital
1-Risk capital corporations are commercial companies consisting of the type
of anonymous societies.
2-A The firm of venture capital corporations includes the expression or abbreviation,
Respect, "Risk Capital Society" or "SCR", which, or others that with
they confuse themselves, they cannot be used by other entities.
3-The minimum social capital of venture capital corporations, represented
compulsorily for nominative actions, is € 125000.
4-The social capital of venture capital corporations can only be realized through
entries in cash or from some of the asset classes identified in the a ) from the
n Article 9 (1), without prejudice to the possibility of capital increases being effected
in the modality of incorporation of reserves, in the general terms provided for in the Code of
Commercial Societies.
5-The statutes of the venture capital society may provide for the possibility of
deferment of the cash inflows whenever the investment strategy o
justifies.
6-The management reports and annual accounts of venture capital corporations shall be
legal certification object by auditor registered in the CMVM.
7-In addition to the provisions of the present Legal Regime and other provisions specifically
applicable, venture capital corporations are governed by the respective statutes.
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8-Are object of report drawn up by auditor registered in the CMVM the entries with
any of the asset classes identified in the ( a ) of Article 9 (1) for the purpose of
of the realization of the social capital of venture capital corporations.
Article 12.
Own funds
1-When the overall net value of portfolios under management of venture capital corporations
exceeds € 250000000, the same are required to constitute a supplementary amount
of own funds equal to 0.02% of the amount in which the overall net value of the
portfolios under management exceeds such an amount.
2-The venture capital companies referred to in the preceding paragraph may be allowed 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.
Article 13.
Regular provision of information
The venture capital society annually provides the CMVM with information on the
major instruments in which it negotiates, on the main positions of risk and the
most important concentrations of the funds in venture capital or own portfolio that
generate, in the terms provided for in Article 5 of the Delegated Regulation (EU) No 231/2013, of the
European Commission of December 19, 2012.
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CHAPTER III
Investors in venture capital
Article 14.
Legal and firm form
1-Investors in venture capital are special venture capital companies
mandatorily constituted second to the kind of unipersonal society by quotas.
2-Only natural persons can be the sole partner of investors in venture capital.
3-A The firm of investors in venture capital includes the expression or abbreviation,
respects, "Investor in Venture Capital" or "ICR", the which, or others that with
they confuse themselves, they cannot be used by other entities.
4-In addition to the provisions of the present Legal Regime and other provisions specifically
applicable, investors in venture capital are governed by the respective statutes.
CHAPTER IV
Venture capital funds
SECTION I
General provisions
Article 15.
Form and legal regime
1-The venture capital funds are autonomous heritage, without legal personality,
but endowed with judicial personality, belonging to the set of the holders of the
respects units of participation.
2-Risk capital funds do not respond, under any circumstances, by the debts of the
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participants, the entities that ensure the functions of management, deposit and
marketing, or other venture capital funds.
3-Pelas debts relating to the venture capital fund answers only the heritage of the
same.
4-Risk capital funds are governed by the forecast in the present Legal Regime and
by the constant standards of the respective management regulation.
Article 16.
Denomination
1-The denominations of the venture capital funds contain the expressions " Fund of
venture capital ", or the abbreviation" FCR " or others that, through regulation of the
CMVM, are envisaged for modalities of venture capital funds.
2-Only venture capital funds can integrate into their denomination the expressions and
abbreviations referred to in the preceding number.
SECTION II
Managing entities
Article 17.
Management
1-Each venture capital fund is administered by a managing entity.
2-A The management of venture capital funds can be exercised by capital companies of
risk, by regional development societies and by entities legally
enabled to manage alternative investment bodies in securities
closed.
3-A regulations referred to in Article 67 (2) shall apply to other entities which,
by virtue of special law, be empowered to manage venture capital funds, except if
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are subjected to equivalent arrangements.
4-A The managing body, in the performance of its duties, acts on the account of the participants of
independent mode and in the exclusive interest of these, by competing to practise you all
acts and operations necessary to the good administration of the venture capital fund, accordingly
with high levels of zeal, honesty, diligence and professional aptitude,
specifically:
a) To promote the constitution of the venture capital fund, the underwriting of the respects
units of participation and the fulfilment of the obligations of entry;
b) To draw up the management regulation of the venture capital fund and eventual
proposed changes to this, as well as, when it is the case, to draw up the respect
public offering prospeit;
c) Select the assets that should integrate the heritage of the venture capital fund
in accordance with the investment policy constant of the respect of the respective regulation of
management and practice the acts necessary for the proper execution of that strategy;
d) Acquire and divest the assets to the venture capital fund, exercise the respects
rights and ensure the punctual fulfillment of its obligations;
e) Managing, alienating or burdening the assets that integrate the heritage of the capital fund of
risk;
f) Issue and reimburse the participation units and make them represent in
compliance with that provided for in the management regulation;
g) Determine the value of the assets and liabilities of the venture capital fund and the value of the
respects units of participation;
h) Keep in order the documentation and accounting of the venture capital fund;
i) To draw up the management report and the accounts of the venture capital fund and
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make available, to holders of units of participation, for consideration, these
documents, in conjunction with the account review documents;
j) Convene the assembly of participants, and may submit proposals on
any subjects subject to deliberation;
k) To provide participants, in particular, in the respective assemblies, information
complete, truthful, current, clear, objective and lawful about the subjects
subject to the appreciation or deliberation of these, which allow them to form opinion
grounded on these subjects.
5-In the exercise of the powers referred to in the preceding paragraph, the managing body fulfils
and controls the observance of the applicable standards, of the management regulation of the funds of
venture capital and contracts concluded within the scope of the activity of the same.
6-The gestural entities can be elected or assigned and appoint members to the
social bodies of the companies in which the venture capital fund by you managed to participate
or they can make collaborators available to them to provide services.
7-The venture capital funds managed by investment fund managing companies
furnishings become subject to the provisions of Chapter IV of Title III.
Article 18.
Duties of the managing entities
1-The managing entities of venture capital funds shall exercise their activity in the
sense of the protection of the legitimate interests of holders of units of participation of
venture capital funds per se managed and give them fair treatment and
equitable.
2-The managing entities shall refrain from intervening in business that manage conflicts of
interest with the holders of the venture capital fund participation units
under its management.
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3-The managing entities must have organisational structure and procedures
internal suitable and commensurate to their size and complexity of the activities by you
developed.
SECTION III
Regulation of management and operation of venture capital funds
Article 19.
Regulation of management
1-Each venture capital fund has a management regulation, drawn up by the
respects the managing entity, of which the contractual standards governing its
health.
2-A underwriting or the acquisition of venture capital fund participation units
implies the subjection to the respective management regulation.
3-The management regulation contains at least the following elements:
a) Identification of the venture capital fund;
b) Identification of the managing entity;
c) Identification of the auditor responsible for the legal certification of the accounts of the fund of
capital of risk;
d) Identification of depository credit institutions of the values of the fund of
capital of risk;
e) Duration of the venture capital fund and possible extension;
f) Period of annual economic exercise when different from the corresponding to the year
civil;
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g) Amount of capital of the venture capital fund and number of units of
participation;
h) Conditions under which the venture capital fund may proceed to increases and
reductions in capital;
i) Identification of the categories of units of participation and description of the respects
rights and obligations;
j) Mode of representation of the units of participation;
k) Period of initial underwriting of the units of participation, and not the same
be greater than 25% of the duration of the venture capital fund;
l) Underwriting price of the units of participation and minimum number of units of
participation required in each subscription;
m) Rules on the underwriting of the units of participation, including criteria of
allocation of the subscribed units, and on the realization of the capital of the fund of
capital of risk, including amounts and deadlines for each of the categories;
n) Applicable regime in the event of incomplete underwriting;
o) Indication of the entities responsible for the promotion of the underwriting of the units
of participation;
p) Investment policy of the venture capital fund;
q) Limits to indebtedness of the venture capital fund;
r) Income distribution policy of the venture capital fund;
s) Criteria for valorisation and the form of determination of the unit value of each
category of units of participation;
t) Form and periodicity of communication to the participants of the composition
discriminated against the applications of the fund and the unit value of each category of
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units of participation;
u) Indication of the remuneration to be paid to the managing body and the depositories, with
discrimination of the respects modes of calculation and conditions of collection, well
as of other charges borne by the venture capital fund;
v) Terms and conditions of the settlement, particularly early, of the sharing, of the
dissolution and from the extinction of the venture capital fund;
w) Other rights and obligations of the participants, the managing entity and the
depositaries.
4-The venture capital funds set in the management regulation the criteria, the frequency
or the timing of the subscriptions and achievements of the capital to be effected.
Article 20.
Amendment of the Management Regulation
1-It is the exclusive competence of the managing entity of the venture capital fund a
submission of proposed amendments to the respective management regulation.
2-The changes to the management regulation, which do not arise from legal provision
imperative, depend on approval upon deliberation of the assembly of
participants, taken by a majority of the votes issued, without prejudice to the provisions of the
the following number.
3-Do not depend on approval in assembly of participants, unless required in the
management regulation, the changes to the same as whether they refer:
a) To the change of the denomination, seat and contacts of the managing entity, of the entity
depositary and the auditor;
b) By the provisions of the items d ), g ), n ), the ), s ) and t ) of paragraph 3 of the preceding Article;
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c) Identification of the members of the social organs of the managing body;
d) Change of the holders of the social capital of the managing entity;
e) Domain or group relations referring to the managing entity;
f) Inclusion of new marketer entities;
g) Reduction of the overall amounts collected for the title of management commissions,
deposit, underwriting, rescue and transfer or fixation of other conditions more
favorable;
h) Updating of quantitative data;
i) Adaptations to legislative or regulatory changes; and
j) Mere formal corrections that do not take place in specific legal provision.
4-In cases where the change to the management regulation involves the modification of
rights assigned to a category of units of participation, the production of its
effects is dependent on consent of the holders of the respective units of
participation, which is provided through special assembly deliberation of this
category of participants, approved by a majority of at least two thirds of the votes
issued.
Article 21.
Capital
1-The venture capital funds have a minimum subscribed capital of € 1000000.
2-The capital of venture capital funds can be increased by virtue of new
entries and in accordance with the terms set out in Article 39.
Article 22.
Units of participation
1-The heritage of venture capital funds is represented by parties, without value
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nominal, designated by units of participation.
2-A The underwriting of a venture capital fund is subject to a minimum underwriting of
€ 50000 by each investor, with the exception of the members of the board of directors of the
gestures entity.
3-A The constitution of usufruct or pledge on units of participation shall be subject to the
required form for the transmission between alive of the respective units of participation.
4-Equity units in venture capital funds must be nominative.
Article 23.
Categories of units of participation
1-There can be issued different categories of units of participation in function of
rights or special characteristics relating to them, as long as provided in the
management regulation and ensured consistency with the risk profile and the policy of
investment from the venture capital fund.
2-The categories of units of participation can be defined, in a reasoned manner,
on the basis of, inter alia, in one or more of the following criteria:
a) Management and deposit fees;
b) Conditions for underwriting and realization;
c) Capitalization or distribution of income;
d) Degree of preference in reimbursement, payment of income and the
payment of the proceeds of the settlement.
3-The participation units of each category have equal charateristics and ensure the
their holders the same rights and obligations.
4-The specific income and costs of each category are affections to heritage
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represented by the units of participation of that category.
5-The value of the units of participation of each category, when different from that of other
categories, is computed autonomously by the division of the overall net value of each
category by the number of units of participation in circulation of that same
category.
6-Notwithstanding the provisions of the preceding paragraphs, the different categories of units of
participation do not constitute autonomous heritage compartments, owing this
characteristic to be highlighted in the respective constitutive documents.
Article 24.
Calculation of the value of the units of participation
1-Without prejudice to the management regulation to establish a lower time frame, the managing body
determines the unit value of the categories of units of participation of the fund of
capital of risk reported to the last day of each semester.
2-The unit value of the holding units held and the composition of the portfolio of the
venture capital fund are communicated to the participating respects, in the terms
set out in the management regulation, and no such periodicity may exceed 12
months.
Article 25.
Autonomic heritage compartments
1-The management regulation may provide for the division of the venture capital fund into
autonomous heritage compartments, designated "sub-funds" in the terms provided
in the present Legal Regime and in regulation of the CMVM.
2-Each autonomous heritage compartment is represented by one or more categories
of units of participation and is subject to the rules of equity autonomy.
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3-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.
4-The venture capital fund with autonomous heritage compartments has a
only management regulation, even though the investment policies of these are
necessarily distinct from each other, which, in addition to other requirements laid down in the present
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.
5-A each autonomous heritage compartment shall apply for the established legal regime
for the respect of the venture capital fund, including the scheme of the units of
participation and the requirements regarding capital.
6-The management regulation of the venture capital fund sets out the conditions applicable to the
transfer of units of participation between heritage compartments
autonomous.
7-Are kept autonomous accounts for each of the heritage compartments
autonomous.
Article 26.
Entries for the realization of the capital
1-Each underwriter of participation units is obliged to contribute to the fund of
capital of risk in cash or in some of the asset classes identified in the (
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a ) and b ) of Article 9 (1).
2-Are object of report drawn up by auditor registered in the CMVM the entries with
any of the asset classes referred to in the preceding number, which shall be designated
by the managing entity of the venture capital fund specifically for the purpose, not
and shall have any interests related to the underwriters concerned.
3-The value assigned to the participation of each underwriter may not be higher than that of the respectful
contribution to the venture capital fund, considering to the effect the respect
contribution in cash or the value assigned to assets by the auditor referred to in the
previous number.
4-Verified the existence of an overestimation of the asset delivered by the underwriter to the
venture capital fund, stands the underwriter responsible for the provision to this of the difference
ascertained, within the time limit referred to in Article 28 (1) and (2), fining which, no
having that amount been provided, the managing body shall make the reduction, by
cancellation, of the number of units of participation held by the underwriter concerned until
permake that difference.
5-If the venture capital fund is private, by rightful act of third party, of the asset
provided by the underwriter or to become impossible to provide, the latter must
carry out their participation in cash, applying, in the case of default
tempestive of this realization, the willing in the final part of the previous number.
6-Are void the acts of the managing entity or the deliberations of the assemblies of participants
that exempt, in whole or in part, the participants of the obligation to effecting the entries
stipulated, save in the case of reduction of capital.
7-A CMVM should participate in the Public Prosecutor's Office the acts referred to in the number
previous for the purpose of interposition, by this, of the competent statement actions of
nullity.
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Article 27.
Constitution and the realization of deferred entries
1-The venture capital funds consider themselves constituted at the time when, by the
less, one of the underwriters will proceed to the first contribution for the purpose of realization
of your capital.
2-A The realization of the entries relating to the units of participation may be deferred by the
period of time that comes to be stipulated in the management regulation of the fund of
capital of risk.
3-A realization of the units of participation is carried out under the same conditions by all
the participants of the same category of units of participation.
4-The obligations to carry out entries transmit with the respective respects units of
participation.
Article 28.
Lives in the realization of the entries
1-Notwithstanding the time limits set out in the management regulation of the venture capital fund
for the realization of entries, the holder of units of participation only enters into mora
after being notified by the managing entity of the venture capital fund for the purpose.
2-A notification shall be effected by individual communication addressed to the holder and shall
fix a time frame between 15 a to 60 days for compliance, after which you start to live.
3-To holders of participation units who find themselves in mora as to the obligation
of realizing entries cannot be paid income or delivered other assets of the
venture capital fund, with such values being used, while the mora holds,
for compensation of the missing entry.
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4-They may not participate or vote in the assemblies of participants, including through
representative, holders of participation units who find themselves in mora
as to the obligation to carry out entries.
5-A non-realization of the indebted entries in the 90 days following the start of the mora implies
the loss, in favour of the venture capital fund, of the units of participation in relation to the
which one lives to check, as well as of the amounts paid for your account.
Article 29.
Acquisition of units of participation by the managing entity
The managing entities may acquire units of participation from the funds which
to administer up to the limit of 50% of the units issued by each of the said funds.
Article 30.
Acquisition of units of participation by the venture capital fund
1-A venture capital fund may not acquire units of participation per se issued,
except in the case provided for in Article 28 (5) or as a consequence of acquisition of
a patrimony at a universal title.
2-The units of participation acquired under the exceptions provided for in the number
previous are, within the maximum period of one year counted from the date of the acquisition,
divested, under penalty of cancellation at the end of that period, with the consequent reduction of the
capital of the venture capital fund.
Article 31.
Depositories
1-The relations between the managing entity and the depositaries of the values of the capital fund of
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risk are governed by written contract, of which they appear, inter alia, the functions of these
last and the respect remuneration.
2-The depository credit institutions of the values of the venture capital fund do not
may assume the managements entity functions of that venture capital fund.
3-Depositaries can freely subscribe or acquire units of participation from
venture capital fund with respect to which they exercise the functions of depositaries.
Article 32.
Charges
They constitute charges of the venture capital fund the costs associated with respect to the management,
particularly the following:
a) Remuneration of the managing entity;
b) Remuneration of the trustees;
c) Remuneration of the auditor;
d) Costs with investments and disinvestment in assets, including expenses
associated;
e) Costs associated with the applications of treasury excesses, including commissions and
intermediation rates;
f) Costs related to the documentation to be made available to holders of
units of participation and with the convening of assemblies of participants;
g) Costs with legal, financial and tax consultants from the venture capital fund.
Article 33.
Remuneration of the managing entity
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The remuneration of the managing entity for the management services of the venture capital fund
must appear in the management regulation, and this information shall reproduce in a way
clear, complete and transparent the conditions of calculation and collection of the same, which may
include:
a) A fixed management commission;
b) A variable management commission, dependent on the performance of the fund of
capital of risk.
Article 34.
Accounts
1-The accounts of venture capital funds are closed annually with reference to 31
of December or in accordance with the provisions of Article 65 of the Code of Societies
Commercials and are object of auditor report registered in the CMVM.
2-The management report, the balance sheet and the demonstration of the results of the capital fund of
risk, in conjunction with the auditor's report, are made available to the participants
with at least 15 days in advance in relation to the date of the annual meeting of the
assembly of participants.
SECTION IV
Assemblies of participants
Article 35.
Assembly of participants
1-A convocation and the operation of the assembly of participants shall be governed by the provisions of
in the law for the shareholders ' assemblies, unless otherwise arranged in the present
Legal Regime.
2-A Assembly of participants is convened with at least 20 days in advance.
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3-A convocation of the assembly of participants can be effected by registered letter with
notice of revenue addressed to each of the participants, or, in relation to those who
communicate in advance of your consent, by electro-mail with receipt of
reading, or still by advertisement published, at least, in a newspaper of major circulation in the
Country or by advertisement released through the CMVM's information diffusion system.
4-Have a right to be present at the assembly of participants the holders of units of
participation that they have at least one vote.
5-The holders of participation units may, by letter addressed to the President of the
board of participants assembly, make themselves represent by third party.
6-There may be special assemblies of participants holding a single category of
units of participation.
7-A The table of the assembly shall be composed of a President and a Secretary, designated by the
managing entity of the venture capital fund, which may not be members of the
bodies of administration or cadres of the managing entity or of societies which, directly or
indirectly, to dominate or be by it dominated.
8-A each unit of participation corresponds to one vote, unless the contrary provision of the
management regulation.
9-A holder of participation units that has more than one vote cannot fracture
your votes to vote for diverse senses about the same proposal or to leave
of voting with all your votes.
10-A assembly deliberates whatever the number of holders of units of
participation present or represented and the capital they represent.
11-A Assembly deliberates by majority of votes issued, save in cases of aggravation
of this majority imposed by legal provision or by the management regulation of the fund of
capital of risk.
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12-A Assembly of participants may only deliberate on matters which, under the
present Legal Regime, whether it be of its competence, or on those for which
are expressly requested by the managing body and, solely, on the basis of
proposals submitted by the managing body, and may not, unless agreement of the entity
gestures, modify or replace the proposals by the latter subjected to deliberation of the
assembly.
13-The deliberations of the assembly of participants shall bind the holders of units of
participation that were not present, as well as those who abstained or voted
vanquished.
Article 36.
Annual assembly of participants
The annual meeting of participants shall meet within four months of the date
of the closure of the previous economic exercise to:
a) Deliberating on the activity report and the accounts of the exercise;
b) The gestures society clarifying the participants; and
c) Proceed to the general assessment of the situation of the venture capital fund and the policy of
investments pursued during that exercise.
Article 37.
Unvalidity of deliberations
1-The actions of declaration of nullity or annuation of deliberations of assemblies of
participants are proposed against the venture capital fund.
2-To the invalidity of the deliberations of the assemblies of participants applies, in all that
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is not contrary to the respect of nature, the willing as to the invalidities of
deliberations of associates of commercial companies.
SECTION V
Vicissitudes of venture capital funds
Article 38.
Duration and extension
1-Risk capital funds must have a specified duration, save if in the
constitutive documents is planned to be negotiated on a regulated market, in
multilateral trading system or in other organized forms of negotiation
multilateral of its units of participation.
2-The extension of the duration of the venture capital fund, one or more times, is permitted.
for periods not exceeding the initial, provided that it obtained favourable deliberation of the
assembly of participants, on a proposal from the managing body, by a majority of the votes
issued, and taken up with a six-month advance in relation to the term of the
duration of the fund.
3-Particies who vote against the extension can apply for the rescue of the
units of participation.
4-The value of the unit of participation, whose rescue is requested under the provisions of the
previous number, corresponds to that of the last day of the period initially planned for the
duration of the venture capital fund, and there must be an opinion of the auditor, drawn up with
an advance no more than 30 days in relation to the date of the rescue, which is pronounced
expressly on the valuation of the assets of the venture capital fund.
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5-To the financial settlement of the rescue of the units of participation applies, with due
adaptations, the provisions of Article 42 (13).
6-A The managing body communicates to the CMVM the extension of the duration of the capital fund of
risk within 15 days from the date of the deliberation.
Article 39.
Increase in capital
1-The capital increases of the venture capital fund depend on deliberation of the
assembly of participants taken, on a proposal from the managing body, by the majority of the
votes issued, except if another majority is imposed by the management regulation.
2-The holders of participation units shall enjoy a right of preference, proportional
to the amount of the respect for participation, in the capital increases by new entries in
cash, unless stipulating diversion from the management regulation.
3-The holders of participation units are advised with at least 15 days of
in advance, about the time frame and conditions for the exercise of your right of preference,
in the terms provided for in Article 35 (3).
4-The right of preference referred to in paragraph 2 may be deleted or restricted by
deliberation of the assembly of participants taken by a majority of at least two
thirds of the votes issued, on a proposal from the managing body, in which they cannot vote
the beneficiaries of the said deletion or limitation.
5-To the realization of the entries by virtue of raising capital applies the provisions of the
second part of Article 20 (4) and in Article 27.
Article 40.
Reduction of capital
1-The capital of the venture capital fund can be reduced to release excess capital,
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for loss coverage or to annul units of participation in compliance with
the one provided for in Article 30 (2).
2-Except in the case provided for in Article 30 (2), which is proctored by total extinction of the
participation units, the capital reduction can process by regrouping
units of participation or by extinction, total or partial, of all or some of them.
3-The capital reductions of the venture capital fund whose conditions do not elapse
directly from the law and who do not find themselves provided for in respect of the management regulation
depend on deliberation of the assembly of participants taken, on a proposal from the
managing entity, by a majority of the votes issued, except if another majority is imposed
by the management regulation.
Article 41.
Merger and division
1-A merger or the spin-off of venture capital funds whose conditions do not arise
directly from the law and who do not find themselves provided for in respect of the management regulation
depend on deliberation of the assembly of participants taken, on a proposal from the
gestures entity, by majority of votes issued except if another majority is imposed
by the management regulation.
2-The venture capital funds resulting from the spin-off or merger of two or more funds from
venture capital maintain the legal duties that resulted from the investment portfolio
of the venture capital funds incorporated or cinded.
3-The merger and spin-off are still applicable the rules laid down in CMVM regulation.
Article 42.
Dissolution and settlement
1-The venture capital funds dissolve by:
a) Course of the period by which they were constituted;
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b) Deliberation of the assembly of participants, in the applicable cases;
c) Cancellation of the registration;
d) Decision of the CMVM, pursuant to paragraph 6.
2-The fact that originates the dissolution is immediately communicated to the CMVM, in the situations
provided for in points a ) and b ) of the previous number.
3-The dissolved venture capital fund immediately goes into liquidation, this being
irreversible in case of fund constituted upon public offer.
4-A The dissolution of a venture capital fund is carried out in the terms set out in the
respect for management regulation and, in the situation provided for in the paragraph b ) of paragraph 1, depends on
deliberation of the assembly of participants taken, on a proposal from the managing entity,
by a majority of two-thirds of the votes issued.
5-A The managing body assumes liquidation functions, save for different person designation
by the CMVM which, in that case, sets the remuneration to which it constitutes charge of the
managing entity, while in this case the liquidators the powers that present the present Regime
Legal assigns to the managing entity, maintaining, however, the duties imposed on the
depositaries.
6-When, by virtue of contraventions of the management regulation or the legal provisions and
regulatory that govern venture capital funds, the interests of the participants and
the defence of the market justifies it, the CMVM can determine the dissolution of a fund
of venture capital.
7-The dissolution process referred to in the preceding paragraph starts with the notification of the
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decision to the managing body and the depositories.
8-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.
9-The accounts of the settlement of the venture capital fund are sent to the CMVM on the deadline of
15 days after the closing of the settlement that occurs at the time of payment of the
product of settlement to the participants.
10-The venture capital fund considers itself to be extinct on the date of the revenue of the accounts of
settlement by the CMVM.
11-Settlement accounts include the balance sheet, the demonstration of the results, the
demonstration of the cash flows, the auditor's report of the venture capital fund and the
settlement report.
12-Of the settlement report stated, namely:
a) The discrimination of all the operations effected with a view to settlement;
b) Statement by the liquidator in the sense that they have been acaucated all rights
of the participants of the venture capital fund.
13-The reimbursement of the units for participation upon payment referred to in paragraph 9 shall
occur within a maximum of one year from the date of commencement of settlement of the fund
of venture capital, and the CMVM may, at the request of the managing entity duly
reasoned, extend that deadline.
Article 43.
Public distribution
To the public offering of distribution of shares in venture capital fund is
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applicable the provisions of Title III of the Securities Code, approved by the
Decree-Law No. 486/99, of November 13, and respect regulation, with the
necessary adaptations.
Title III
Investment activity in venture capital above the relevant thresholds
CHAPTER I
Entities and bodies covered
Article 44.
Scope of application
1-This title applies to the holding companies of venture capital funds, to the
venture capital funds managed by these entities and investment corporations
in venture capital.
2-The venture capital funds subject to the scheme provided for in Chapter IV of the present
title can only be managed by the managing companies referred to in the preceding paragraph
and by the managing companies of investment funds of furniture.
3-For the purposes of the provisions of this Title, the definitions provided for in the
article 2 of the General Regime of Collective Investment Organisms, approved by the
Law n. [Reg. PL 323/2014], without prejudice to the provisions of the following number.
4-For the purposes of this Title, it is understood by the entity responsible for the management of the
companies referred to in the n. paragraphs 1 and 2.
5-The entities responsible for the management shall be subject to the terms provided for in Article 10.
6-Investment companies in venture capital are anonymous capital companies
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fixed or variable by giving them applicable, with due adaptations, the provisions of
articles 11, 52 and 56 and in Article 57 (2) of the General Regime of the Organisms of
Collective Investment, approved by Law n. [Reg. PL 323/2014].
7-A investment society in venture capital that is not self-managed can be managed
by society manager of investment funds furnishings or by the managing company of
venture capital funds, upon written contract.
8-The societies referred to in paragraph 1 shall be special venture capital companies.
CHAPTER II
Conditions of access of the managing companies of venture capital funds and the
investment companies in venture capital
Article 45.
Activity of the managing companies of venture capital funds and societies of
investment in venture capital
1-Risk capital fund management companies have as the main object the management
of investment bodies in venture capital and investment bodies
specialized alternative subject to the scheme provided for in Chapter IV of this Title and the
management of funds provided for in European Union legislation whose investment covers
the eligible assets for collective investment bodies in securities and
investment bodies in venture capital.
2-The social object of investment companies in venture capital consists of the realization
of investments in venture capital by means of the operations provided for in paragraph 1 of the
article 9.
3-A The activity of the companies referred to in the preceding paragraphs has the scope provided for in the
article 66 of the General Regime of Collective Investment Organisms, approved by the
Law n. [Reg. PL 323/2014].
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Article 46.
Social capital and own funds
1-The minimum social capital of venture capital fund holding companies,
mandated compulsorily by nominative actions, is € 125000.
2-The minimum social capital of investment corporations in self-managed venture capital,
mandated compulsorily by nominative actions, is € 300000.
3-To the realization of the capital, the provisions of Article 11 (4) and 8 (8) shall apply.
4-The companies referred to in the preceding paragraphs shall apply to Article 71 of the Regime
General of Collective Investment Organisms, approved by the Law
n. [Reg. PL 323/2014], in respect of own funds requirements, being the
competence provided for in paragraph 6 of that article attributed to the CMVM.
5-The holding companies of venture capital funds is still applicable the provisions of the
article 29.
Article 47.
Suitability of members of the social bodies and holders of shareholdings
qualified
1-The members of the social bodies that have the effective direction of the managing societies of
venture capital funds and venture capital investment corporations, are
people with good reputation and sufficient experience, particularly in relation to the
investment strategies adopted by the investment bodies in capital of
risk managed, owing:
a) The CMVM is immediately informed of the identity of these persons and of all
that they will live to succeed them in their duties;
b) The effective direction is ensured by at least two people who gather the
conditions set out above.
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2-Shareholders of the holding companies of venture capital funds and of the companies of
investment in venture capital with qualifying holdings should be people
idogens, taking into account the need to ensure sound and prudent management of these
societies.
3-On the appreciation of the requirements of idoneity and professional experience are applicable, with
the due adaptations, Articles 30-D, 31, n. paragraphs 1, 2 and 11 of Article 33 and Article 103 para.
of the General Regime of Credit Institutions and Financial Societies, approved by the
Decree-Law No. 298/92 of December 31.
Article 48.
Prior authorization
1-A constitution of managing companies of venture capital funds and of societies of
investment in venture capital depends on prior authorization from the CMVM.
2-The application for permission is instructed with the following elements:
a) Information about the people who effectively drive the activities of society
and, in particular, on members of the social bodies, including questionnaire and
statement of idoneity of each member, criminal record and curriculum vitae ;
b) Information about the identity of the shareholders who hold, direct or
indirectly, qualified participations are they natural persons or
collectives, as well as on the number of shares held, voting rights and the
percentage of corresponding capital, including questionnaire and statement of
idoneity of each shareholder, criminal record and curriculum vitae ;
c) A program of activities that establishes the organizational structure of society,
including description of human, technical, material and computer media to affect
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to the exercise of the activity and information on how it intends to comply with the
obligations arising from the present Legal Regime;
d) Information on the policies and practices of remuneration;
e) Information on the foreseen mechanisms for the subcontracting of functions.
3-The application for the authorization of investment society in venture capital and
managing company of venture capital funds shall contain the following information
on the investment body in venture capital in society-form or on the
investment funds in venture capital that the managing company intends to manage:
a) Information on investment strategies, including the types of funds
underlying, if the investment body in venture capital is a fund of
funds, and the policy of the society with regard to the use of the effect of
leverage, on the risk profiles and other characteristics of the funds it manages
or intends to manage, including information on Member States or countries
third parties in which these funds are established or are expected to be
established;
b) Information about the place where the main type investment fund is
established, should the investment fund be of the food type;
c) The constitutive documents of each of the funds that the society intends
manage;
d) Information on the mechanisms foreseen for the contracting, pursuant to the
article 120 of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014], of the depositary of each of the funds
that the society intends to manage;
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e) The additional information referred to in Article 221 (1). Of the General Regime
of the Collective Investment Bodies, passed by Law n.
[Reg. PL 323/2014], in respect of each of the funds that the society manages or
intends to manage.
4-For the purposes of the provisions of the preceding paragraph, the expression "fund" covers societies
of investment in venture capital.
5-A CMVM may limit the scope of the authorization of the management activity of bodies of
alternative investment, particularly with respect to investment strategies.
6-The application for a permit is further instructed with the elements referred to in points (s) c ), and ) and
f ) of Article 7 (3), with the necessary adaptations if the society is not yet
constituted.
7-A authorisation depends on prior consultation with the competent authority of the Member State
relevant when the society is:
a) A subsidiary of another managing entity of the European Union, of the managing society of
securities, investment firm, institution of investment funds,
credit or insurance company, 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 another managing entity of the European Union, society gestures of
securities investment funds, investment firm, institution of
credit or insurance company, authorized in that Member State.
Article 49.
Decision for authorization
1-A CMVM decision is notified to the applicants within 30 days, from the date
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of receiving 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. 3 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, the authorisation
considers itself to be undue.
Article 50.
Refusal of authorization
1-A CMVM refuses authorisation of holding companies of venture capital funds and of
venture capital investment societies in the following situations:
a) The content of the elements instrucing the application is insufficient;
b) Society does not demonstrate having the capacity to comply with the duties
established in the present Legal Regime.
2-A CMVM also refuses the application for permission should the effective exercise of the
supervisory functions are brought into question by:
a) Close relations existing between the managing companies of capital funds of
risk and investment companies in venture capital and other persons
singular and collective;
b) Legal, regulatory or administrative provisions of third countries that
governing natural or collective persons with which the holding companies of
venture capital funds and investment corporations in venture capital
hold such relations; or
c) Difficulties related to the implementation of the said legal provisions,
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regulatory or administrative.
3-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 supply the insufficiency or to address the appreciation of the
CMVM.
Article 51.
Expiry and revocation of the authorisation
1-A authorization of the managing company of venture capital funds and the society of
investment in venture capital lapses if the society does not use it within 12
months or have ceased, for at least six months, their activity.
2-A CMVM may revoke the authorization of the society when:
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
defense of the market justifying it;
b) Authorisation has been obtained with recourse to false statements or any
another irregular medium;
c) The society shall fail to bring together the conditions for granting permission.
Article 52.
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Subsequent changes
To the changes in the initial conditions of authorisation of the managing companies of funds of
venture capital and investment companies in venture capital shall apply the willing
in Articles 25 and 26 of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014], with due adaptations.
CHAPTER III
Operating conditions of the holding companies of venture capital funds
and of investment companies in venture capital
Article 53.
General requirements and remuneration policy
1-The managing companies of venture capital funds and investment companies in
venture capital fulfill at all time the duties of:
a) Act with honesty, with due competence and with zeal, diligence and
correction in the conduct of its activities;
b) Acting in defence of the best interests of the participants and the bodies of
investment in venture capital by you managed and the integrity of the market;
c) Have the resources and processes necessary for the appropriate exercise of their
activities and employ them efficiently;
d) Take all reasonable steps to avoid conflicts of interest and, should these
can not be avoided, to identify, manage and follow up and, where appropriate,
disclose such conflicts of interest in order to prevent them from negatively affecting the
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interests of the investment bodies in venture capital and the participants,
as well as to ensure that investment bodies in venture capital
by you managed receive a fair treatment;
e) Comply with all the regulatory requirements applicable to the exercise of its
activities, in order to promote the interests of the participants of the bodies of
investment in venture capital by you managed and the integrity of the market;
f) Treating all participants of investment bodies in venture capital of
fair form.
2-No participant in an investment body in venture capital may
benefit from preferential treatment, except in the case that this fact is disclosed in the
constitutive documents of the investment body in venture capital concerned.
3-The managing companies of venture capital funds and investment companies in
venture capital must establish remuneration policies and practices, in the terms
provided for in Article 78 of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014].
Article 54.
Conflicts of interest
1-The managing companies of venture capital funds and investment companies in
venture capital take all reasonable steps to identify the possible occurrence
of conflicts of interest in the course of the management of investment bodies in
capital of risk between:
a) The own, including its members of the governing bodies,
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collaborators and natural or collective persons who have a relationship of
direct or indirect control with them, and the body by themselves managed or the
participants in this;
b) The investment body in venture capital or the participating respects, and
another investment body in venture capital or the respects
participants;
c) The investment body in venture capital or the participating respects, and
another customer of the society; or
d) Two customers of society.
2-The managing companies of venture capital funds and investment companies in
venture capital maintain and apply effective organizational mechanisms and procedures,
in order to identify, prevent, manage and follow conflicts of interest that
harm the interests of investment bodies in venture capital by you
managed and the participating respects.
3-The managing companies of venture capital funds and investment companies in
venture capital shall:
a) Maintain a separation, in the context of its own functioning, among the
functions and responsibilities that may be considered incompatible with each other
or that they may generate conflicts of systematic interests;
b) Assess whether your operating conditions may involve any others
conflicts of significant interests and disclose such possible conflicts to the
participants from the investment bodies in venture capital.
4-If the organization measures adopted by the managing companies of capital funds of
risk and investment companies in venture capital to identify, prevent, manage and
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keep up with conflicts of interest are not sufficient to ensure, with a
degree of reasonable certainty, that the risks of the interests of the participants are
impaired were estranged, the societies:
a) Clearly inform the participants, before effecing any operation in their
name, of the generic nature and sources of these conflicts of interest; and
b) They put in place appropriate policies and procedures in that context.
5-Case, in the context of the contracting of services of a principal broker, the societies
management of venture capital funds and venture capital investment societies
preview the possibility of transfer and reuse of assets of the organism of
investment in venture capital, must the same:
a) Record of the respected contract written between the parties:
b) Be communicated to the depositary of the investment body in venture capital.
6-The managing companies of venture capital funds and investment companies in
venture capital must act with due competence, zeal and diligence in selection and
appointment of the principal brokers.
7-A reuse of assets by the depositary of the investment body in capital of
risk depends on the prior consent of the managing company of capital funds of
risk or of the investment society in venture capital, as applicable.
8-A The prediction of the possibility referred to in paragraphs 5 and 7 is only possible in the bodies of
investment in venture capital exclusively targeted at qualified investors.
Article 55.
Management of risks
1-The managing companies of venture capital funds and investment companies in
venture capital must separate functional and hierarchically the management functions of
risks of the operational units, including portfolio management.
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2-A The functional and hierarchical separation of the risk management functions referred to in the terms
of the preceding paragraph shall be reviewed by the CMVM in accordance with the principle of
proportionality, understanding that the holding companies of capital funds of
risk and investment companies in venture capital should, in any case,
be able to demonstrate that there are specific safeguards against conflicts of interest
that allow for the independent exercise of risk management activities and that the
risk management process complies with the requirements of this article and is
Consistently effective.
3-The managing companies of venture capital funds and investment companies in
venture capital establishes appropriate risk management systems that allow
identify, measure, manage and monitor appropriately all relevant risks
for the investment strategy of each investment body in venture capital
and to which each organism is or may come to be exposed.
4-A evaluation of the creditworthiness of the assets of the investment bodies in
venture capital shall not be based solely or automatically on risk ratings
issued by credit rating agencies, in the acetion of the b ) of Article 3 (1)
of Regulation (EC) No 1060/2009, of the European Parliament and of the Council, of 16 of
september 2009.
5-The managing companies of venture capital funds and investment companies in
venture capital must review their risk management systems frequently
enough, at least once a year, and adapt them whenever necessary.
6-The managing companies of venture capital funds and investment companies in
venture capital must at least:
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a) Regularly comply with the duty of due diligence ( due diligence ), in form
appropriate and documenting it, in the investments effected in the name of the
investment body in venture capital, according to the strategy of
investment and with the risk profile of the same;
b) Ensure that the risks associated with each body's investment position
of investment in venture capital and its overall effect on the portfolio
can be correctly identified, measured, managed and accompanied by
permanent form, including through the use of appropriate techniques of
effort test;
c) Ensuring that the risk profile of the investment body in venture capital
is consistent with its size, with the structure of its portfolio of assets and with
your investment objectives and strategies, defined in the respect
management regulation.
7-Taking into account the nature, size and complexity of the activities of the body of
investment in venture capital, CMVM verifies the suitability of the processes of
credit assessment of the managing companies of venture capital funds and of the
investment companies in venture capital, assesses the use of the references to
ratings of risk in investment policies of investment bodies in
venture capital and, if warranted, encourages the mitigation of the impact of such references,
with a view to reducing the exclusive or automatic dependence of the said societies
in relation to the ratings of risk.
8-The managing companies of venture capital funds and investment companies in
venture capital fixtures the maximum level of the leverage effect to which they will be able to appeal
on behalf of each investment body in venture capital per se managed, well
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as the extent to which the reuse of the assets given in warranty may occur in the
scope of the legal instrument that gave rise to the leverage effect, considering,
particularly:
a) The type of investment body in venture capital;
b) The investment strategy of the investment body in venture capital;
c) The sources of the leverage effect of the investment body in capital of
risk;
d) Any other interdependence or relevant relationship with other institutions of
financial services susceptible to constitute systemic risk;
e) The need to limit exposure to any counterparty in concrete;
f) The extent to which the leverage effect is guaranteed;
g) The ratio between the asset and the liability;
h) The scale, nature and extent of the activity of fund managing societies
of venture capital and venture capital investment societies in the markets
in question.
Article 56.
General requirements in relation to organization
1-The managing companies of venture capital funds and investment companies in
risk capital ensure, at all time, appropriate human and technical resources and
appropriate that are necessary for the good management of the investment body in
capital of risk.
2-Taking also into account the nature of investment bodies in venture capital
managed, the managing companies of venture capital funds and the societies of
investment in venture capital must:
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a) Use sound administrative and accounting procedures and dispose of
control and safety mechanisms in the field of electrolytic treatment of
data;
b) Have appropriate internal control procedures, including, in particular,
rules regarding the personal transactions of your collaborators and the detention or
investment management to invest on your own.
3-The procedures referred to in paragraph b ) of the previous number ensure at least
that:
a) Each transaction in which the investment body in venture capital participates
may be reconstituted as to its origin, to the parties involved therein, to its
nature and the moment and place in which it was effected; and
b) The assets of venture capital investment bodies are vested with
agreement with respect to the management regulation and with the legislation in force.
Article 57.
Subcontracting
1-The managing companies of venture capital funds and investment companies in
capital of risk who wish to subcontract third parties for the performance of duties in
your name notifies CMVM in advance of the production of effects of subcontracting and
meet the following conditions:
a) The society must be able to justify with objective reasons the entire structure of
subcontracting;
b) The subcontractor must have sufficient resources to exercise the respects
functions and the people who effectively conduct their activities should have good
reputation and sufficient experience;
c) Should subcontracting concern the management of portfolios or risks, they can only be
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subcontracted entities authorised to manage assets and subject to supervision or, case
this condition cannot be satisfied, upon prior authorisation from the CMVM;
d) In case subcontracting concerns the management of portfolios or risks and whether
intends to subcontract company from a third country, in addition to the requirements of the
previous shall be ensured cooperation between the CMVM and the authority of
supervision of the company concerned;
e) Subcontracting cannot compromise the effectiveness of the supervision of society,
not to, inter alia, to prevent it from acting, or to manage the body of
investment in venture capital in the interest of its participants;
f) Society must be able to demonstrate that the subcontractor is empowered and is capable
of performing the duties in question, which was chosen with all the zeal due
and that the same is in a condition to, at any time, follow up with
effective form the subcontracted activity, give additional instructions to the subcontractor
or cease subcontracting with immediate effect when such is in the interest of the
participants.
2-A the managing company of venture capital funds and the investment society in
venture capital shall regularly review the services provided by each subcontractor.
3-Cannot be subcontracted portfolios of portfolios or risks:
a) With the depositary or in a subcontractor;
b) With any other entity whose interests may conflict with the
interests of the society or the participants of the investment body in
venture capital, unless that entity has separate functional and
hierarchically the performance of its portfolios or portfolio management functions
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risks from other potentially conflicting functions and that potential conflicts
of interests have been properly identified, managed, controlled and
disclosed to the participants of the investment body in venture capital.
4-A The responsibility of the managing company of venture capital funds and the society of
investment in venture capital before the investment body in capital of
risk and its participants is not harmed by the fact that society has
subcontracted functions in a third party or by any other subcontracting.
5-A the managing company of venture capital funds and the investment society in
venture capital may not subcontract its functions in such a way that, in terms of
concrete, empty their activity and stop being able to be considered as entities
responsible for the management and to turn into a mere postal address.
6-The third party may subcontract any functions that have been subcontracted to it
by the managing companies of venture capital funds and by the societies of
investment in venture capital, as long as they are met, in addition to the conditions
set out in paragraph 1, the following conditions:
a) The Society has given its prior consent to subcontracting;
b) The Society has notified the CMVM in advance of the production of effects of the
subcontracting.
7-The third subcontractor may not subcontract portfolios or portfolio management functions
risks with the entities referred to in paragraph 3.
8-The third subcontractor shall regularly review the services provided by each
entity per se subcontractor.
9-Should the second subcontractor hire for his / her turn some of the functions that have been
subcontractors, apply, with the necessary adaptations, the conditions established
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in paragraph 6.
CHAPTER IV
Conditions of operation of investment bodies in venture capital
Article 58.
Investment bodies in venture capital managed by entities above the
relevant thresholds
The venture capital investment bodies provided for in this Title shall be
subject to the provisions of this Chapter and still to the provisions of Chapters I and IV of the title
II as to venture capital funds, to the extent that this does not contravene the provisions of the
this chapter.
Article 59.
Management of liquidity
1-In relation to each of the investment bodies in venture capital that they manage and
that have resorted to the leverage effect, the entities responsible for the management:
a) Implement an appropriate system of liquidity management and adopt
procedures that allow them to keep up with the liquidity risks of the body
of investment in venture capital; and
b) They ensure that the liquidity profile of the investments of the body allows them
comply with its obligations.
2-The entities responsible for the management regularly carry out effort tests, in
normal conditions and on excecional liquidity conditions, which allow them to assess and
keep up with the liquidity risks borne by the investment body in capital
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of risk in those conditions.
3-The entities responsible for the management ensure the coherence of the strategy of
investment, the liquidity profile and the policy of reimbursements in relation to each of the
investment bodies in venture capital by you managed.
Article 60.
Requirements for asset evaluation
1-To the management of investment bodies in venture capital is applicable, in respect of
valuation of assets, the provisions of articles 93 to 95 and 133 of the General Regime of the
Collective Investment Bodies, passed by Law n. [Reg. PL 323/2014], with
the due adaptations.
2-The entities responsible for the management ensure that the net value per unit of
participation of the investment bodies in venture capital be calculated and
disclosed to the participants in the event of an increase or reduction of the capital's respected respect.
3-Particiments should be informed of the evaluations and calculations by the predicted form
in the management regulation of the investment body in venture capital.
Article 61.
Depositary
The entities responsible for the management hire a depositary on the terms provided for in the
chapter II of Title II of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014], by staying this subject to all duties there
predicted.
Article 62.
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Annual report
1-The annual report, including the auditor's report, of each investment body
in venture capital managed or marketed in Portugal is placed at the disposal of the
participants at the request of these, sent to the CMVM and, if applicable, put at the disposal of the
competent authorities of the State-Member State of the investment body
in venture capital.
2-The annual report shall comply with the provisions of Article 161 and Article 221 (3) thereof,
both of the General Regime of Collective Investment Organisms, passed by the Law
n. [Reg. PL 323/2014].
Article 63.
Information to investors and CMVM
1-For each of the investment bodies in managed venture capital or
marketed in Portugal, the entity responsible for the management:
a) Makes it available to investors, according to the respected documents
constitutive and prior to the investment in these bodies, the
information referred to in Article 221 of the General Regime of the Organisms of
Collective Investment, approved by Law n. [Reg. PL 323/2014];
b) It sends the CMVM the reports provided for in Article 222 of the General Regime of the
Collective Investment Bodies, passed by Law n. [Reg. PL 323/2014].
2-For the purpose of risk control, it is still applicable to the investment bodies in
venture capital, with reference to the information provided for in the b ) of the previous number, the
provisions of Article 223 of the General Regime of Collective Investment Organisms,
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approved by Law n. [Reg. PL 323/2014].
CHAPTER V
Obligations arising from a position of control in unlisted companies and in
corporate issuers of shares admitted to trading on regulated market
Article 64.
Applicable regime
The entities responsible for the management shall be subject to the provisions of Section III of the
chapter II of Title III of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014].
CHAPTER VI
Management and marketing in Portugal and the European Union
Article 65.
Applicable rights and procedures
1-A authorization of third country managing entities that run exclusively
investment bodies in venture capital, investment bodies in
social entrepreneurship or specialized alternative investment bodies stay
subject to the provisions of Section V of Chapter I of Title II of the General Regime of the
Collective Investment Bodies, passed by Law n. [Reg. PL 323/2014].
2-To the managing companies of venture capital funds and investment companies in
venture capital, as well as to the managing entities of third countries that manage
exclusively investment bodies in venture capital, bodies of
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investment in social entrepreneurial or alternative investment bodies
specialized authorized in Portugal applies to the provisions of Sections VI and VIII of the
chapter I of Title II of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014], with respect to bodies of
alternative investment.
3-To the managing entities of the European Union and to the managing entities of third countries that
manage exclusively investment bodies in venture capital, bodies of
investment in social entrepreneurial or alternative investment bodies
specialized whose reference State is not Portugal is applicable to the
section VII of Chapter I of Title II of the General Regime of Investment Organisms
Collective, approved by Law n. [Reg. PL 323/2014].
4-On the marketing of investment bodies in venture capital, bodies of
investment in social entrepreneurial or alternative investment bodies
specialized in Portugal and Member States by fund managing companies
of venture capital, investment companies in venture capital, by entities
gestures of the European Union and by managing entities of third countries that manage
exclusively investment bodies in venture capital, bodies of
investment in social entrepreneurial or alternative investment bodies
specialized is applicable to the provisions of Section IV of Chapter III of Title III of the Regime
General of Collective Investment Organisms, approved by the Law
n. [Reg. PL 323/2014].
5-A CMVM shall be exclusively competent as to the subjects provided for in the figures
previous, the standards regarding the intervention of the Bank of Portugal not being applicable.
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Title IV
Competent authority
Article 66.
Registration for marketing of EuVECA and EuSEF
1-A CMVM is the competent authority to register the venture capital companies and the
societies of social entrepreneurship who wish to use the EuVECA designation
or EuSEF in the marketing of the funds constituted in the terms provided for in the article
7 and in Regulation (EU) No 345/2013, of the European Parliament and of the Council, of 17
of April 2013, and in Regulation (EU) No 346/2013, of the European Parliament and of the
Council, of April 17, 2013.
2-Risk capital societies and societies of social entrepreneurship that
wish to obtain the registration referred to in the preceding paragraph shall comply with all the
requirements required in the said Regulations.
Article 67.
Supervision and regulation
1-Compete to the CMVM the supervision of the provisions of the present Legal Regime, availed
for the purpose, in addition to the powers and powers provided for in the Code of Values
Securities, approved by the Decree-Law No. 486/99 of November 13, those if
specify in this title.
2-It is up to the CMVM, the regulation of the provisions of the present Legal Regime,
specifically as to the following subjects:
a) Evaluation of assets and liabilities;
b) Organization of accounting;
c) Duties of provision of information;
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d) Process of authorisation and registration;
e) The suitability requirements of members of social bodies and holders of
qualified participations;
f) Marketing of funds from social entrepreneurship and from bodies of
specialized alternative investment;
g) Rules applicable to societies of social entrepreneurship and funds of
social entrepreneurship;
h) Rules applicable to specialized alternative investment companies and the
specialized alternative investment funds;
i) Vicissitudes of the investment bodies and sub-funds, including merger,
spat and liquidation.
3-In the regulation provided for in the preceding paragraph, the nature, the
dimension and the complexity of the activities exerted.
4-The regulations required for the implementation of the Legal Regime come into force on the working day
following the entry into force of the same.
Article 68.
Methods of the competent authority
The CMVM establishes the appropriate methods to verify that the entities that generate
investment bodies in venture capital, investment bodies in
social entrepreneurship or specialized alternative investment bodies
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meet the obligations that on them impend, taking into account the
guidelines established by the European Securities Authority and the
Markets.
Article 69.
Prudential supervision of the authorized third country managing entities in
Portugal
1-A-The prudential supervision of third country managing entities that run organisms
of investment in venture capital, investment bodies in entrepreneurship
social media or specialist alternative investment bodies authorized in Portugal
it is the competence of the CMVM, regardless of whether those manage or
market investment bodies in venture capital in another
Member State.
2-Received notification from the competent authorities of the host Member State
of the holding companies of venture capital funds, of investment corporations
in venture capital, the specialized alternative investment companies or the
third country managing entities, which manage investment bodies in capital of
risk, investment bodies in social entrepreneurship or bodies of
specialized alternative investment, authorized in Portugal, expressing motives
clear and demonstrable to believe that the same do not comply with the obligations
arising from standards whose compliance lies with the CMVM overseeing, these
authorities take appropriate measures, particularly, if necessary, requesting
additional information to the competent supervisory authorities of third countries.
Article 70.
Supervision of established or authorised managing entities in another State-
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Member
The supervision of activity in Portugal of entities managing bodies of
investment in venture capital, investment bodies in social entrepreneurship
or specialized alternative investment bodies of the European Union and countries
third parties authorised in another Member State shall be subject to the provisions of Articles 246 and
247. of the General Regime of Collective Investment Organisms, passed by the Law
n. [Reg. PL 323/2014].
Article 71.
Non-compliance by third country managing entity authorized in Portugal
Should the CMVM consider that a managing entity of investment bodies in
venture capital, from investment bodies in social entrepreneurship or
specialized alternative investment bodies of third country authorized in
Portugal does not comply with the obligations arising from the present Legal Regime notifies
indicating their reasons, as quickly as possible, the European Authority of the
Securities and Markets of that fact.
Article 72.
Cooperation with the European Securities and Markets Authority and
the Bank of Portugal
1-A request from the European Securities and Markets Authority, the CMVM
acts on the terms set out in Article 249 of the General Regime of the Organisms of
Collective Investment, approved by Law n. [Reg. PL 323/2014].
2-A CMVM cooperates with the Bank of Portugal, with the competent authorities of
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other Member States and with the European Securities Authority and the
Markets in the supervision of:
a) Entities managing bodies of investment in venture capital, de
investment bodies in social entrepreneurship or from bodies of
alternative specialist investment from third countries, in the terms provided for in the
article 248 of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014]; and
b) From the acting of the managing entities of investment bodies in capital of
risk, from investment bodies in social entrepreneurial or from
specialized alternative investment bodies that are not subject to your
supervision, pursuant to Article 251 of the General Regime of the Organisms of
Collective Investment, approved by Law n. [Reg. PL 323/2014].
Article 73.
Cooperation and exchange of information
1-Without prejudice to the provisions on the duty of secrecy laid down in the current legislation,
case an investment body in venture capital, a fund of
social entrepreneurship or a specialized alternative investment body
or entity responsible for the management has been declared insolvent or its liquidation
forced to have been ordered judicially, the confidential information that does not
involve third parties implicated in attempts to recover that body or
entity may be disclosed in the framework of legal proceedings of a civil nature or
commercial.
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2-The provisions of Article 252 of the General Regime of Collective Investment Organisms,
approved by Law n. [Reg. PL 323/2014], is still applicable with reference to the activity
relating to the bodies referred to in the preceding paragraph.
Title V
Sanctionatory regime
Article 74.
Scope of application
The illicit of mere social ordinance provided for in this title concern both rape
of the duties provided for in the present Legal Regime and respect for regulation, such as the
violation of consecrated duties, in respect of the matters regulated in this Regime,
in legislation, national or of the European Union, including in Regulation (EU)
n 345/2013, of the European Parliament and of the Council of April 17, 2013 and in the
Regulation (EU) No 346/2013, of the European Parliament and of the Council, of April 17 of
2013, and in the respect of regulation.
Article 75.
Counterorders
1-Constituent very serious counterordinate, punishable with fine of € 25000 a € 5000000,
the following typical illicit facts:
a) The communication or provision of information to the CMVM that is not true,
complete, objective, current, clear and licite or the omission of that communication or
provision of information;
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
dissemination of information;
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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 investment activities in venture capital, in
social or alternative entrepreneurial entrepreneurship without authorization, registration,
prior notification or outside the scope of the authorization or registration;
e) The practice of acts pertaining to investment in venture capital, in
social and alternative entrepreneurial entrepreneurship by entities in activity
without authorisation or prior notification to the competent authority;
f) Non-collaboration with the authorities of supervision or disturbance of the exercise
of the supervisory activity;
g) The carrying out of prohibited operations;
h) The failure to meet the levels of own funds;
i) The default of limits on investment or indebtedness;
j) The lack of acting independently and in the exclusive interest of the
participants;
k) The non-equitable, unprofessional or discriminatory treatment of the
participants;
l) The resolution of situations of conflicts of interests in a non-equitable manner or
discriminatory;
m) The failure to carry out duties relating to conflicts of interest.
n) The failure to comply with the rules on heritage segregation;
o) The omission of elaboration, defective elaboration or omission of communication
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of reporting and accounts;
p) The failure to comply with the rules on the valuation of assets;
q) The failure to comply with the rules on risk assessment and management;
r) The failure to comply with the rules on the guard of assets;
s) The subcontracting of depositary functions outside the admitted cases;
t) The practice of acts without the prior approval of the assembly of participants;
u) The failure to comply with the rules relating to the heritage compartments or the
categories of units of participation;
v) The failure to comply with legal or regulatory duties before the participants;
w) The failure to fulfil obligations provided for in the constitutive documents;
x) The omission of carrying out audits;
y) The use of reserved denomination or designation without obtaining authorization or
prior registration.
2-Constituent serious counterordinance, punishable with fine of € 12500 a € 2500000:
a) The omission of communication to the CMVM of facts and overdue changes
relating to the application for permission;
b) The failure to meet the minimum thresholds for social capital;
c) The failure to meet the minimum thresholds for venture capital funds;
d) The omission of convening the assembly of participants;
e) The failure to comply with the rules relating to the vicissitudes of the entities whose activity
be the investment in venture capital, in social and alternative entrepreneurship
specialized;
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f) The failure to comply with the rules on the remuneration policy;
g) The failure to comply with the rules relating to the internal organisation;
h) The non-adoption of required assessment procedures;
i) Failure to comply with duties on the matters referred to in Article 73, no
punishable as very serious counterordinance.
3-Cumulatively with the fine and in function of the seriousness of the infraction and the guilt of the
agent, can be applied to those responsible for any counterordinance, in addition to the
provided for in the general regime of the illicit of mere social ordinance, the following sanctions
accessory:
a) Seizure and loss of the object of the infraction, including the product of the benefit
obtained, by the offender through the practice of the counterordinance;
b) Interdiction, for a maximum period of 5 years counted from the sentencing decision
definitive, from the exercise of the activity to which the counterordinate respects;
c) Inhibition, for a maximum period of 5 years counted from the sentencing decision
definitive, of the exercise of social positions and of functions of administration, direction,
managerial and supervisory when the offender is a member of the social organs, exercise
management, management, direction or managerial positions or atue in representation
legal or voluntary in any collective persons covered by the present
Legal Regime;
d) Publication by the CMVM, at the expense of the offender and in idoidal locations for the
compliance with the purposes of general prevention of the legal system and protection
of the financial system and securities markets or other
financial instruments, of the penalty applied by the practice of the counterordinance;
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e) Revocation of the authorisation or cancellation of the registration required for the financial year
of investment activities in venture capital, in social entrepreneurship or
specialized alternative.
4-A publication referred to in para. d ) from the previous number can be done in full or by
excerpt, as decided by the CMVM.
Article 76.
Competence
The CMVM is the competent entity for the processing of the counterorders, application
of the fines and ancillary sanctions and measures of a cautionary nature.
Article 77.
Subsidiary law
It applies to the counterordinations provided for in this Law and to the proceedings to the same
relating, the substantive and procedural regime of the Securities Code,
approved by Decree-Law No. 486/99 of November 13.
