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This Does Not Dispense with the Need to Consult the Original Portuguese Version Published in the Official Gazette This does not dispense with the need to consult the original Portuguese version published in the Official Gazette. Commercial Company Act (Republished by Decree-Law No. 76-A/2006, of 29 March and amended by Decree-Law No. 8/2007, of 17 January and Decree-Law No. 357-A/2007, of 31 October) TITLE I General CHAPTER I Scope of Application Article 1 General Scope of Application 1 – This law shall apply to commercial companies. 2 – Commercial companies are those whose purpose is to exercise commercial activities and which take the legal form of partnerships, private limited companies, public companies, limited partnerships or limited partnerships with share capital. 3 – Companies having as their purpose the exercise of commercial activities must take one of the forms referred to above. 4 – Companies having the sole purpose of practising non-commercial activities may take one of the forms referred to in paragraph 2, in which case they shall be subject to this law. Article 2 Subsidiary Law Cases not provided for under this law shall be regulated according to the rules which apply to similar cases, and, in the absence of such rules, according to those set forth in the Civil Code with regard to articles of association, insofar as these are not contrary to the general principles of this law or to the principles which apply to the legal form adopted. Article 3 Personal Law 1 – Commercial companies shall have as their personal law the laws of the State in which their principal headquarters are located and their central management carried out. Companies having their registered office in Portugal are not, however, permitted to contest the right of third companies to be subject to laws other than Portuguese law. 2 – Companies which transfer their central management and control to Portugal shall retain their legal personality, if permitted to do so under the law by which they are governed, however their articles of association must be in accordance with the laws of Portugal. 3 – For the purpose of the provisions set forth in the previous paragraph, a representative of the company must oversee the registration of the articles of association by which the company is to be governed. 4 – Companies having their central management and control in Portugal may transfer it to another country, maintaining their legal personality, provided that the laws of the country in question permit such a move. 5 – The decision to transfer headquarters pursuant to the previous paragraph must be in observance of the provisions for amendments to a company’s articles of association, and under no circumstances shall such a decision be adopted by less than 75% of the votes corresponding to the company’s share capital. Those partners who did not vote in favour of the resolution in question shall be permitted to resign from the company, announcing their decision within 60 days of publication of the resolution in question. Article 4 Companies Exercising their Activity in Portugal 1 – Companies which do not have their central management and control in Portugal, but wish to exercise their activity in this country for more than one year, must establish a permanent representation here and comply with the provisions set forth under Portuguese law in relation to commercial registration. 2 - Any company which fails to comply with the provision set forth in the previous paragraph shall, in spite of this, be bound by any acts carried out on its behalf in Portugal, and shall be jointly liable for such acts with the persons carrying them out and with the company's managers or directors. 3 – Notwithstanding the provision set forth in the previous paragraph, the courts may, at the request of any interested party or of the Public Prosecution Service, order the company failing to comply with the provisions of paragraph 1 to cease their activity in Portugal, and order the liquidation of any assets held by the company in Portugal. Article 4- A Written Documentation The stipulation or provision established in this Code, that documentation relating to any legal transaction be set forth in writing, shall be considered complied with or met even if the hard copy format or signature are substituted by another means of identification which ensures at least equivalent levels of intelligibility, durability and authenticity. CHAPTER II Personality and Capacity Article 5 Personality Companies shall be deemed to have legal personality and exist as such from the date of final registration of the articles of association by means of which they are established, notwithstanding the stipulations as regards the establishment of companies by merger, division or the conversion of other companies. Article 6 Capacity 1 – The capacity of a company shall include the rights and obligations necessary or appropriate to the pursuit of its corporate purpose, with the exception of those which are prohibited by law or inseparable from the legal form of a sole tradership. 2 – The non-waiver clauses which can be considered usual, according to the circumstances of the time and the conditions of the company itself, shall not be considered to be contrary to the company’s purpose. 3 – The provision of real or personal guarantees for any debts of other entities shall be considered contrary to the purpose of the company, except in cases where the guaranteed company has its own justified interests or it is in a group or controlling relationship. 4 – The standard clauses and a company’s resolutions which establish its specific purpose or prohibit the carrying out of certain acts shall not limit the capacity of the company; however the corporate bodies shall be bound by the duty to not exceed the limits of this purpose and to refrain from carrying out such prohibited acts. 5 – The company shall be civilly liable for any acts or omissions by those persons who represent it, under the terms whereby those committing such acts or omissions are liable for acts or omissions by the parties carrying out the acts. CHAPTER III Articles of Association SECTION I Signing and Registration Article 7 Format of and Parties to the Articles of Association 1 – The articles of association must be set down in writing and the signatures of the parties thereto must be verified by a witness present at the signing, except where a more solemn declaration is required for the transfer of the assets with which the partners join the company, in which case the articles must adopt that format. 2 – Two shall be the minimum number of parties to a company’s articles of association, except when the law requires a higher number or permits a company to be established by only one person. 3 – For the purpose of the previous paragraph, those persons whose equity interest in the company was jointly acquired shall count as a single party. 4 – The incorporation of a company by merger, or by means of the division or conversion of other companies shall be governed by the respective provisions set forth in this law. Article 8 Equity held by Spouses in Companies 1 – The establishment of companies between spouses is permitted, and spouses are also permitted to have equity interests in companies, provided that only one spouse assumes unlimited liability. 2 – When an equity interest is held jointly by both spouses as a result of the applicable matrimonial property law, in their dealings with the company, the spouse who signed the articles of association shall be considered to be the partner, or, in the case of acquisition subsequent to the articles of association, the spouse who brought the equity into the marriage shall be considered to be the partner. 3 – The provision set forth in the previous paragraph shall not prevent the exercise of administrative powers conferred by civil law upon the spouse of a partner who is for any reason unable to exercise said power; nor does the provision detract from the spouse’s right to the equity interest in the event of the death of the spouse who is the partner. Article 9 Fundamental Elements of the Articles of Association 1 – The articles of association of any type of company must contain the following information: a) The names or business names of all founding partners and other data which identifies them; b) The type of company; c) The business name; d) The purpose of the company; e) The company’s headquarters; f) The capital, except in the case of partnerships in which all partners contribute only their services; g) The quota held by each partner in the capital of a company and the type of initial capital contribution, as well as any payments made against each quota; h) In the event of an initial capital contribution comprising assets other than money, a description of these assets and specific information pertaining to their value; i) In cases where the financial year differs from the calendar year, the date on which it closes, which must coincide with the last day of the calendar month, notwithstanding the provisions of Article 7 of the Corporate Income Tax Code. 2 – The stipulations of the articles of association as regards initial capital contributions in kind shall cease to have effect whenever the contributions in question fail to satisfy the requisites set forth in items g) and h) of paragraph 1. 3 – The rules set forth in this law shall only be derogated by the articles of association, unless these expressly permit derogation by means of a resolution by the partners. Article 10 Business Name 1 – The characteristic elements of business names must not be suggestive of an activity other than that which constitutes the company’s corporate purpose. 2 – When the business name of a company consists solely of the names or the business names of all, any or some of the partners, it must be completely different to any business names which have already been registered.
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