Portuguese due diligence are generally similar to any other due diligence. There are, however, some legal features with an impact on the risk assessment of the potential buyer that should be considered in a due diligence of a Portuguese target company.
In general, a due diligence may comprise four main stages:
- Drafting a checklist incorporating all information to be requested to the target;
- Reviewing information and drafting a preliminary plan with the most relevant topics for each exposure area;
- Drafting a preliminary report with the assessment of all relevant information/documentation;
- Drafting a final report (after requesting other relevant data related to the business, if necessary);
- and These stages are indicative and may vary on a case-by-case basis. In some cases, a due diligence process may even continue to be relevant in a post-closing term.
A due diligence process occurs throughout the proposed transaction, which may be concluded in a few weeks or months.
An effective selection of all relevant information, limiting the scope of the matters related to the business, may be crucial for a due diligence to be carried out correctly and avoid undesirable surprises.
The length of a due diligence process may depend on several issues: (i) how much time and monetary resources the potential buyer may spend, (ii) the exposure areas to be covered (iii) the documentation/information to be reviewed, (iv) the need to hire specialized consultants and many other relevant business aspects.
Although there is no a preferred outcome, it is crucial that the collected information confirms the real situation of the target company. The target company may be subject to different regulatory obligations due to its nature or the nature of its business. The legal framework governing Portuguese companies and Portuguese law contracts, should be properly assessed.
This paper reviews the most relevant aspects in a due diligence of a Portuguese target and certain legal and regulatory aspects affecting Portuguese due diligences that should be considered by foreign buyers and their legal advisors.
Portugal is experiencing a persistent banking crisis that translates into high levels of non-performing loans.
The causes of this crisis are now clear: the slow growth of the economy, the excessive weight of the State, the high levels of public debt, corporate debt and individuals’ debt, which began in the nineties and accelerated without control in the first decade of the new millennium.
These factors combined with the global financial crisis of 2008 triggered a serious financial and economic crisis, which would culminate in the request for international aid in 2011.
Following the sovereign debt crisis in 2010, the European banking authorities have imposed more stringent stress tests, the strengthening of the banks’ own funds and the contributions of shareholders and creditors for the recapitalisation of distressed banks.
However, the bank resolution mechanism, now in force in Europe, does not respond to the less critical situations where imbalances result from the difficulties in disposing of non-performing loans, which can become more serious when they reduce the liquidity of banking institutions and undermine the confidence of depositors.
Six years following the Troika intervention and three years after the end of the Portuguese bailout program, the banking crisis continues despite the concentration of banks and the reorganisation of the sector.
Public and private indebtedness remains high and banks accumulate non-performing loans in their balance sheets and in vehicles they indirectly control.
The Portuguese government and international institutions, like the IMF, the OECD, the European Commission, the EBA and the ECB recognize the problem and agree that banks should be freed of non-performing loans. However, they do not agree on the urgency of the problem and on whether State and/or European intervention are needed. While the EBA, the IMF and the OECD have been advocating the creation of an European mechanism for the disposal of bad loans, the EU Commission and the ECB prefer a softer approach.
This presentation is intended for anyone considering Portugal as their new home, setting out the main aspects worth knowing and outlining the opportunities of living in Portugal
You’ll also find a description of the Residence Permit for Investment Activity programme (ARI) launched by the Portuguese Government, which has proven to be an easy solution for investors from outside the Schengen who wish to obtain a residence permit in Portugal.
It includes rules on how non-EU citizens, who want to invest in Portugal, may obtain residence permits for investment purposes, known as “golden visas”.
As other European countries, Portugal has made several changes to its employment laws in the last few years and increased the flexibility of the legislation to attract foreign investment.
According to the World Economic Forum's Report 2016-2017, presently the Portuguese employment legislation is less rigid than that many European countries (for instance Germany and France), although still more rigid than that of the benchmark countries.
The labour reform approved in 2009 and the changes introduced after Portugal’s international bailout in 2011 have contributed to reduce the level of rigidity of employment rules. Nowadays Portugal is also better ranked in OECD´s Employment Protection Legislation Index.
Several aspects of the legislation have been revised since the adoption of the 2009 Labour Code, which adopted more employer-friendly legislation concerning the organisation of the workforce. For instance, working schedules may now be managed in a more flexible way without increasing the labour costs. The Labour Code also contains flexible rules that allow the employer to unilaterally change the place of employment and the employee’s functions.
According to the WEF Report, the changes in the labour regime has put Portugal 0.3 points behind the EU average, but ahead of larger European countries such as Spain and France.
After Portugal’s international bailout in 2011, Portugal simplified the termination procedures, reduced the severance pay, decreased the holiday leave period and suspended some public holidays.
Of course the elimination of some public holidays, rest days after overtime were not consensual, even though viewed as necessary by the Troika at the time.
After the general election of 2015, the suspension of the public holidays was removed in 2016 but no relevant changes to the labour legislation were made. Portugal believes that the system now strikes the right balance between securing employees’ acquired rights and benefits and the level of flexibility required by employers.
This translates into a low level of employment disputes. According to Pordata, an independent database of socioeconomic data, the average number of working days lost through industrial action by employee in 2014 was 1.7 against 1.1 in 2013, despite the harsh austerity measures imposed in Portugal in the last years.
The water sector in Portugal comprises the activities of (i) abstraction, treatment and distribution of water for public consumption, and (ii) wastewater sanitation. The responsibility for providing the services is shared between the State and municipalities.
The State is responsible for the Multimunicipal systems, or “upstream” systems, consisting of a set of components upstream of the water distribution network and downstream of the sewage network, which allow connection to the "downstream" system.
In turn, municipalities are responsible for Municipal systems, or “downstream" systems, which allow the “upstream” system to be linked at the end user, as well as collecting residual water from the producer by rejecting them in a “upstream“ system.
The State and municipalities can use different management models to carry out the activities of the sector, namely: (i) direct management, (ii) delegated management, or (iii) concession management.
The sector is characterized by a huge diversity of realities, not only in the scale and resources of the management entities but also in the management model adopted, subsisting several distinct entities that operate within the framework of different management models.
The water sector is a sector with greater prevalence of public entities. The upstream systems are made up of a universe of 14 companies, of which 9 are from the state business sector, owned by the AdP Group - Águas de Portugal. Only 3 private entities provide services in upstream, which are owned mostly by the private groups AGS and Aquapor).
In downstream systems there tends to be greater openness to private entities. Of the 61 companies that render downstream services, 30 are municipal concessions granted to private companies, 27 are delegations in municipal and intermunicipal companies, 1 is a concessionaire of a multimunicipal system, 2 were established in partnership between the State and municipalities through the ÁdP Group, and 1 is a state-owned company.
According to the latest data published in the Annual Report of the Portuguese Water and Waste Services | 2016 (RASARP 2016), in the multimunicipal water supply the most used management model are the multi-municipal concessions, covering a total of 174 municipalities and more than 5.1 million inhabitants. In contrast, the predominant model in municipal systems is the direct management of municipalities with a total of 70% of the total municipalities and approximately 52% of the population of mainland Portugal.
In 1993, the year the Portuguese natural gas project lifted up, Portugal had no backbone high pressure natural gas pipeline, storage and other infrastructures. From 1993 onwards, such infrastructures were built and natural gas became one of the most important sources of energy used in Portugal.
In the period between, 2000 and 2011, the natural gas demand increased 10% per year, and in 2015 the gas consumption, registered an increase of 16%.
Until 2006 the promotion of natural gas and the development of the system’s main infrastructures were handled by the Galp group companies, Transgás – Sociedade Portuguesa de Gás Natural, S.A. (“Transgás”) and GDP – Gás de Portugal, SGPS, S.A. (“GDP”), under concession agreements entered into with the Portuguese State.
The public service concession for the import, transmission and supply of natural gas through the high pressure pipeline, was granted to Transgás, and the public service concession for the distribution of natural gas through regional pipeline networks, was granted to six different companies, held by the GDP group.
However, the Decree-Law no. 30/2006 of 15 February 2006 (“Gas System Law”) transposed Directive 2003/55/EC, implementing common rules for the internal market.
The most important measures established by the Gas System Law were (i) the creation of a National Natural Gas Distribution Network (RNDGN), licensed or licensed to several operators, to guarantee non-discriminatory and transparent access to the network infrastructures of Liquid Natural Gas (LNG) and RNDGN terminals, (ii) the legal unbundling between the network and infrastructure operators of the National Natural Gas System (SNGN) and the marketers, and (iii) the creation the figure of the natural gas supplier and the last resort supplier.
The Gas System Law principles were specified by Decree-Law 140/2006, of 26 July 2006 (“Gas Regulatory Law”), with new rules for the exercise of transmission, operation of storage of the LNG facilities, and distribution and supply services.
As a result of these changes, the natural gas sector was unbundled, and is currently divided into several activities, each one with different operators. Thus, the sector is structured in (i) reception, (ii) storage and regasification, (iii) underground storage, (iv) transportation, (v) distribution, and (vi) commercialization.
This briefing intends to give an overview on the functioning and organization of the different activities of the Portuguese Natural Gas Sector and on the main players of the sector.
Following harsh economic years, Portugal has shown an unexpected surge in tourism and in the real estate market in 2016 which is now catching the attention of local and foreign investors.
Portugal’s moderate growth rate in 2016, the support of the European Central Bank’s monetary policy and the commitment of the government to bring the deficit to 2.3% have renewed investors’ interest in Portugal. Still there are challenges ahead. Portugal needs to reduce historically high levels of Government debt and unemployment.
After implementing a harsh economic program with little social unrest, Portugal has facilitated the creation of new businesses, reduced the time for obtaining administrative permits, improved its labour legislation and reduced its corporate tax to 21%. For international investors looking for a place to invest in Europe, Portugal offers several advantages, of which many investors are not aware. Portugal is an ideal location for nearshoring industrial and services facilities because of its access to Europe’s 500 million consumers’ market and to the Portuguese-speaking world, which spreads across five continents: Europe, America, Africa, Asia and Oceania.
Portugal has a proven track record of successful foreign investments across a wide range of sectors. Investors that are considering Portugal as a place to invest want to know the hard facts about the country and not the stereotypes associated with the country and its people. Autoeuropa, Volkswagen’s Portuguese auto-plant, is one of its most productive plants. Nokia Siemens Networks chose Portugal to install its new Global Networks Solutions Center. Microsoft, Colt, Ikea have also successfully invested in Portugal in recent years.
Portugal has one of the most favourable business environments in the world. The World Bank's "Doing Business 2017" Report ranks Portugal in the top 25 of the world’s – 12th in the EU – most attractive locations to do business.
The «WhyPortugal 2017» report aims to answer the main questions of international businesses, institutional investors, private equities and industry players that are considering Portugal as a location to invest in Europe. This report provides an overview of the opportunities and challenges of doing business in Portugal and reviews the main aspects to be considered by foreign investors considering Portugal as a place to invest as regards the setting up of a business, hiring employees, taxation and government incentives.
The General Data Protection Regulation (“GDPR”) promises to be the most significant global development in data protection laws across all European Union (“EU”) Member States since Directive 95/46/EC (“Data Protection Directive”), which was implemented in Portugal by Law 67/98, of 26 October 1998.
The GDPR will be directly applicable in all EU Member States from 25 May 2018. The new regulation will have a global scope, as businesses based outside the EU that offer goods or services to individuals in the EU may be required to comply with the GDPR.
The risk of fines up to 4% of annual worldwide turnover or €20 million is surely a strong incentive for companies to comply with the GDPR.
The new regulation is expected to be homogenously applied throughout the EU. Notwithstanding, Portuguese law will apply in cases it may impose more detailed conditions, such as those relating to the processing of sensitive data, particularly genetic data, biometric data or data concerning health. Portuguese law may also contain specific rules regarding the processing of employees' personal data, especially for the purposes of recruitment, performance and termination of the employment contract, which will apply together with the GDPR.
The combined application of the GDPR and the Portuguese law will be particularly relevant where companies collect and process data from Portuguese individuals and/or the Portuguese supervisory authority acts as lead authority due to the fact the main establishment or the single establishment of the controller or processor is located in Portugal.
Individuals, who are resident in Portugal, will have the right to lodge complaints with the Portuguese supervisory authority. For proceedings against a data controller or processor, the plaintiff will have the right to bring the action before the Portuguese courts if the data controller or processor’s business or the individuals’ residence is located in Portugal.
Although the core data protection rules remain broadly the same, there are important changes with impact on day-to-day business and for which companies should be aware of and prepare in advance.
As companies prepare for the entry into force of the GDPR, we propose a seven steps plan detailing the main aspects of the GDPR that companies need to take. This should be also used as an opportunity to improve the way the companies deal with personal data within their organization. The countdown to 2018 has started.
The General Data Protection Regulation (“GDPR”) promises to be the most significant global development in data protection laws across all European Union (“EU”) Member States since Directive 95/46/EC (“Data Protection Directive”), which was implemented in Portugal by Law 67/98, of 26 October 1998.
The GDPR will be directly applicable in all EU Member States from 25 May 2018. The new regulation will have a global scope, as businesses based outside the EU that offer goods or services to individuals in the EU may be required to comply with the GDPR.
The risk of fines up to 4% of annual worldwide turnover or €20 million is surely a strong incentive for companies to comply with the GDPR.
The new regulation is expected to be homogenously applied throughout the EU. Notwithstanding, Portuguese law will apply in cases it may impose more detailed conditions, such as those relating to the processing of sensitive data, particularly genetic data, biometric data or data concerning health. Portuguese law may also contain specific rules regarding the processing of employees' personal data, especially for the purposes of recruitment, performance and termination of the employment contract, which will apply together with the GDPR.
The combined application of the GDPR and the Portuguese law will be particularly relevant where companies collect and process data from Portuguese individuals and/or the Portuguese supervisory authority acts as lead authority due to the fact the main establishment or the single establishment of the controller or processor is located in Portugal.
Individuals, who are resident in Portugal, will have the right to lodge complaints with the Portuguese supervisory authority. For proceedings against a data controller or processor, the plaintiff will have the right to bring the action before the Portuguese courts if the data controller or processor’s business or the individuals’ residence is located in Portugal.
Although the core data protection rules remain broadly the same, there are important changes with impact on day-to-day business and for which companies should be aware of and prepare in advance.
As companies prepare for the entry into force of the GDPR, we propose a seven steps plan detailing the main aspects of the GDPR that companies need to take. This should be also used as an opportunity to improve the way the companies deal with personal data within their organization. The countdown to 2018 has started.
L’échange automatique de renseignements approuvé par le Conseil de l’OCDE dont l’application est prévue pour 2018, s’impose comme la nouvelle norme en matière de collaboration fiscale à l'échelon international.
Il s’agit, pour les pays ayant conclu un accord à cet effet, de s’échanger des renseignements sur les comptes financiers de personnes physiques et morales sur une base annuelle.
Il va permettre de collecter les premières données ce 1er janvier 2017 déjà.