2016-03-30

The Portuguese Government approved 850 resident permits (Golden visa) last month, boosting ARI (Residence Permit for Investment Activity programme) launched in 2012 as a quick solution for investors from outside the Schengen area to obtain a residence permit in Portugal.

This plan includes new rules on the awarding of residence permits for investment activity, known as “golden visa”, to citizens of non-European Union (EU) countries that wish to make a significant investment in Portugal and meet certain requirements.

The “golden visas” grant their holders the right to free circulation in Portugal and in the rest of Schengen area countries. In addition to general requirements applicable to residence permits, “golden visas” require their holders to undertake the obligation of investing in Portugal of certain minimum amounts for a minimum period.

Macedo Vitorino presents «Why portugal - The case for living in Portugal». In this paper, you will find an outline of the opportunities of living in Portugal and of the main aspects to be thought-out by everybody considering Portugal as a place to live.

Learn more here.

2016-01-28

Web Summit will take place in Lisbon this year and an increasing number of new startups from all around the World is expected to choose Lisbon as their headquarters.

MVStart is our project to advise startups and to support them from their early stages.

Our young and dynamic team understands and connects well with startup entrepreneurs. We are experienced with investment vehicles and with ambitious projects, so we know what means to rise up from a blank sheet of paper and make it into a successful project.

In addition, our work in advising international clients (no less than a percentage of 60% of our clients come from abroad) gives us the tools to understand the business concerns of entrepreneurs and to offer them the best legal solutions.

With MVStart we aim at providing legal advice in the areas of interest to startup companies, such as:

• Corporate law, to set up businesses, determine the rights of the management and of each shareholder;
• Tax, to keep the accounts sound;
• Employment, to hire the best workforce;
• Banking and capital markets, to obtain financing, establish financing deals with banks or with investors; and
• Copyright and intellectual property, to protect software, trademarks, patents and your valuable ideas.

If you have a startup company or if you are planning to start a project, know more about us here and keep up with our activities by subscribing to our newsletter.

The Bank of Portugal ordered the re-transfer of €2,000 million senior unsecured bonds to BES, the bad bank that resulted from the collapse of Banco Espírito Santo in 2014. These bonds were originally issued by BES and transferred to Novo Banco following the Bank of Portugal’s original resolution of BES.

The decision follows the suspension of trading of the bonds ordered by the Portuguese Securities Commission and comes as a surprise to the markets and specialists, who were not expecting the Bank of Portugal to revert its original decision.

According to Novo Banco’s press release this measure will allow Novo Banco to improve its common equity Tier 1 ratio to 13%. Senior bondholders stand to lose approximately €2,000 million. The Bank of Portugal’s decision only affects institutional investors. Other creditors, including retail investors holding the same categories of bonds issued by BES, will not be affected.

According to the Bank of Portugal, this decision is definitive and no other changes to BES and Novo Banco assets and liabilities will be made. The Bank of Portugal also announced that it had requested the European Central Bank to order the cancellation of BES banking license, which will be the first step in the liquidation of BES and that it will launch a new procedure for the sale of Novo Banco.

It is expected that this measure will meet fierce opposition from the senior bondholders whose only way forward will be to take the matter to courts. For now, the effects on Novo Banco appear to be positive but it remains to be seen if this decision will facilitate the sale of Novo Banco or scare potential investors away.

We will continue to update this news as more information is known.

 

See Novo Banco's press release

Decree no. 15-A/2015, of 2 September 2015, amends Decree no. 84/2007, of 5 November 2007, which regulates the law establishing the legal framework of entry, stay, exit and removal of foreign citizens from Portuguese territory.

The last amendment to the legal regime on golden visas established new investment activities enabling access to golden visas, which required specific regulation which had not been enacted until now.

In this regard, for the purchase of buildings of at least 30 years located in urban renewal (reabilitação urbana) areas with renewal works of at least €350,000.00, the applicant must submit, in addition to evidence of purchase, (i) evidence of submission of preliminary information request (pedido de informação prévia), of prior notice of works (comunicação prévia) or of licensing request for renewal works and, where applicable, statement issued by the entity in charge of managing the relevant urban operation attesting that the building is located in an urban renewal area, or (ii) construction contract for the urban renewal works to be conducted on the property entered into with a licensed company and receipt of payment of the contract price.

In the case of transfer of funds of at least €500,000.00 in connection with the purchase of participation units in mutual funds or venture capital aiming at the capitalization of small and medium-sized companies with a viable capitalization plan, the applicant must submit, in addition to the documents evidencing the transfer, (i) certificate of ownership of participation units, free of liens or encumbrances, issued by the entity in charge of keeping the updated registry of participation unit holders and (ii) a statement issued by the management company of the relevant investment fund confirming the feasibility of the capitalization plan.

For transfer of funds of at least €250,000.00 in connection with investment or support to arts, recovery or maintenance works on national cultural heritage, the applicant must submit, in addition to the documents evidencing the transfer, a statement issued by the Office of Strategy, Planning and Cultural Assessment confirming the effective funds transfer.

The above-detailed requirements must be met at the date the application is submitted. Investments may be made individually or through a sole shareholder limited liability company based in Portugal or in an EU Member State having a permanent establishment in Portugal.

The minimum period of maintenance of the investment activity and the minimum residence periods for renewal of the residence permit remain unchanged.

Portugal has enacted a new framework for crowdfunding. Law no. 102/2015, of 24 August 2015, regulates the crowdfunding activity, supervision, platforms, beneficiaries, investors as well as the relations between the relevant parties. The new law establishes four crowdfunding types: (i) donation-based, (ii) reward-based, (iii) equity-based and (iv) lending-based crowdfunding.

Entities managing crowdfunding platforms must guarantee access of investors to detailed information on the products made available in the platforms as well as confidentiality of the information received from investors. They must also comply with legal rules and regulations in respect of conflict of interests, particularly regarding directors and employees vis-à-vis the crowdfunding beneficiaries and cannot offer advice or recommendation in respect of investments in their own websites nor hold securities or manage investment funds.

Crowdfunding campaigns must set a fundraising amount and the timeframe to achieve it. If the amount is not achieved within the relevant timeframe, beneficiaries must refund any amounts received to investors. Amounts and timeframes may be changed only once and provided that such possibility was included in the initial campaign and that such information was disclosed to investors. In case there is a change in the campaign, investors may opt out of the project.

Legal relations established pursuant to crowdfunding operations are subject to legal provisions applicable to the relevant type of contract, including, but not limited to, rules on purchase and sale agreements and loan agreements, IP protection rules and banking and capital markets regulations.

Donation-based and reward-based crowdfunding platforms must be registered with the Consumer Directorate-General. The amount to be raised for these projects is capped at 10 times the global amount of the project.

Equity-based and lending-based crowdfunding platforms must register with the Portuguese Securities Commission (CMVM) and are subject to its supervision. Beneficiaries of such funding must provide the platform with financial information, information on tax and social security compliance and capital structure as well as information on the projects to be financed, including risks, with a view to ensure that investors make an informed decision on the investment.

Legislation establishing sanctions applicable to the infringement of the new crowdfunding rules is yet to be passed.

The new rules on donation-based and reward-based crowdfunding enter into force on 1 October 2015. Equity-based and lending-based crowdfunding rules will enter into force once CMVM enacts a regulation detailing certain aspects such as, among others, registration requirements, character requirements of the directors of the platform, caps for raised amount and project information requirements, which should take place within 90 days.

Portugal has ratified the Agreement on a Unified Patent Court (Agreement) signed in Brussels on 19 February 2013, by Parliament Resolution no. 108/2015.

The Unified Patent Court (UPC) shall have exclusive competence for the settlement of disputes relating to European patents and European patents with unitary effect. To this effect, the UPC is competent to:

  • Actions for actual or threatened infringements of patents;
  • Actions for declarations of non-infringement of patents;
  • Actions for revocation of patents; and
  • Granting injunctions against an alleged infringer to prevent, forbid or cease alleged infringements.

The UPC comprises (i) a court of first instance which has a central division with seat in Paris, and sections in London and Munich, as well as regional and local divisions to be established and (ii) a Court of Appeals with seat in Luxembourg. UPC judges are both legally qualified judges and technically qualified judges, the latter having a university degree and proven expertise in certain fields of technology.

Parties may be represented by lawyers or by European Patent Attorneys. The following entities are entitled to bring actions before the UPC:

(a) The patent proprietor;

(b) The holder of an exclusive license in respect of a patent, under the licensing agreement;

(c) The holder of a non-exclusive license, under the licensing agreement; and

(d) Any other natural or legal person, or any body entitled to bring actions, who is concerned by a patent or is affected by a decision of the European Patent Office.

The patent proprietor is always entitled to intervene in actions brought by a license holder.
Proceedings in the UPC will be the language of the local or regional division in which the action is brought or the language in which the patent was granted.

With the entry into force of the Agreement, Lisbon and Ljubljana will receive Patent Arbitration and Mediation Centers. Portugal is still awaiting the decision on the possible establishment of a local division of the Court of First Instance in the country.

Law No. 63/2015 published on 30 June 2015 amends previous Golden Visa regulations to include a new broad concept of "investment activity" that allows the investor to choose between the following investment alternatives to obtain a Golden Visa:

  • Creation of at least 10 jobs;
  • Acquisition of real estate, whose construction has been completed for at least 30 years or located in an urban recovery area and carry out rehabilitation works of real estate acquired in the overall amount of €350,000.00 or higher;
  • Transfer of capital in the amount of no less than €350,000.00, to be applied in research activities;
  • Transfer of funds in the amount of no less than €250,000.00, to be applied in investment or supporting artistic production, recovery or maintenance of national cultural heritage; and
  • Transfer of funds in the amount of no less than €500,000.00, for the purchase of a unit investment trust or venture capital geared to the capitalization of small and medium enterprises.

The minimum investment amounts are reduced by 20% when activities are carried out in areas with less than 100 inhabitants per Km² or GDP per capita below 75% of the national average (i.e. the interior of Portugal).

Foreigners who received residence permits for college education and wish after completing their studies to find work in accordance with their qualifications in Portugal may do for a one year period may temporary residence permit without a new visa.

Applications for a concession of a residence permit and for renovating a residence permit are now decided in 90 and 60 days, respectively.

Law No. 63/2015 of 30 June enters into force on 1 July 2015.

In 2014, the Government amended the rules on financial companies set out in Decree-Law 298/92, of 31 December 1992 (Banking Law) and created a new type of financial company - the credit financial companies.

Decree-Law 100/2015, of 2 June 2015, approved the legal framework applicable to credit financial companies and adapted the legal framework applicable to the other financial companies, taking into account the amendments to the Portuguese Companies Code approved in 2015.

Credit financial companies may carry out any activities that are permitted to banks, save for:

(a) Receiving deposits or other repayable funds from the public;

(b) Payment services; and

(c) Electronic money services.

The registered name of credit financial companies must contain the wording «sociedade financeiras de crédito».

Credit financial companies must assume the form of a public limited company (sociedade anónima). However, they will not be subject to the minimum equity/net assets ratio of 35% applicable to the issue of bonds by public limited liability companies, being authorised to issue bonds of any kind up to four times their shareholder's equity.

Pursuant to its legal framework, credit financial companies will also be authorised to issue commercial paper.

The legal frameworks of the other financial companies were also amended in order to extend the requirements regarding legal form and the issue of bonds to these companies, including:

(a) Investment companies;

(b) Leasing companies;

(c) Factoring companies; and

(d) Mutual guarantee companies.

Decree-Law 100/2015, of 2 June 2015, enters into force on 7 June 2015.

 

2015-03-26

Today Macedo Vitorino refreshes its image and launches a new responsive website. The changes to Macedo Vitorino' brand reflect firm's core values: transparency, integrity and proximity.

The revitalization and transformation of the brand also included the development of a new responsive website. The new website is now adapted to tablets and smartphones, which are today among the preferred means of access to the Internet, with links to the social networks where the firm has a presence. The new website comes with improved navigation features, ease of access and more information about the firm and legal matters of interest to our clients, prospective clients, students and foreign lawyers looking for information on Portuguese law matters.

The Portuguese Government approved the new tender specifications for the privatisation of TAP, the Portuguese flagship airline company, by means of direct sale. Although the tender comprises only 61% of TAP shares, the Portuguese State will hold a put option for two years regarding the remaining stake.

Following a failed attempt to privatise the Portuguese flagship airline company, TAP - Transportes Aéreos Portugueses, S.A. (TAP SA), in 2014, the Government relaunched the privatisation by Decree-Law no. 181-A/2014, of 24 of December 2014, which approved a new privation procedure, including:

  • A direct sale of up to 61% of the share capital of the holding company, TAP SGPS, S.A. (TAP); and
  • An offer of up to 5% of the TAP shares to TAP employees.

Under the new privatisation procedure the Portuguese State will hold a put option in respect of the remaining shares held by it for a period of two years after the privatisation.

Following the agreement reached with the TAP trade unions, which prevented strikes in the Christmas season, the Government has approved the new tender specifications for the privatisation of TAP and the conditions of the offer of the shares to TAP employees under Council of Ministers Resolution no. 4-A/2015, of 20 January 2015.

According to the new privatisation tender specifications, the privatisation will be opened to national and international investors, which may bid individually or in consortia. The selection of the winning bid will include, among other criteria, the following:

  • Improvement of TAP's economic and financial structure;
  • Share purchase price;
  • Capacity to assure TAP's public services obligations; and
  • Technical and management expertise in the air transportation sector.

The binding offer must include a financial binding offer, a technical binding offer and documentation and legal and economic information regarding the bidder.

The financial binding offer must include:

  • Bid stating the number of shares the bidder undertakes to buy and the proposed price;
  • Proposed capitalisation plan for TAP and TAP SA; and
  • Strategy to ensure compliance with TAP SA's legal framework and its status as EU airline operator.

The shares will be subject to a lock-up period of five years. After that period the Portuguese State will have a right of first refusal in any resale of TAP shares acquired by the winning bidder. In general, the new privatisation conditions are more favourable to potential investors and the procedure is expected to be more flexible, which could attract more bidders.