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posted 5 years ago
Even before being declared the state of emergency due
to COVID-19, the Portuguese council of ministers approved the deferral in time
of any deadline – imposed by law or the articles of association – for holding
general meetings of companies, associations or cooperatives.
Envisaged in article 18.º of the Decree Law No.
10-A/2020, and with the purpose of preventing the gathering of several individuals
in the same place, it has been decided that general meetings may now be held until 30 June 2020.
This extraordinary measure, taken within the exceptional
times we are living in, is particularly relevant considering that there is a
legal deadline for holding the annual general meeting to approve the accounts
of the previous financial year. According with the article 65.º, no. 5 of the
Portuguese Commercial Companies Code (“the CCC”), the deadline is 3-months
after the date of closing of each financial year, or five months from the same
date for companies that must present consolidated accounts or that apply the
equity method of accounting.
As is the case for most of Portuguese companies the
financial year coincides with the civil year, meaning that the above-mentioned
deadline would have ended on March 31st.
However, this does not mean that holding of general
meetings is prohibited at all. As foreseen in article 377, nº 6, paragraph b)
of the CCC, companies can hold a general meeting by telematic means, in which
case the company must vouch for the authenticity of declarations made and the
security of communications, and must also register the content of the meeting
and anyone intervening in it.
This alternative way of holding a general meeting has
gained a new relevance given the current pandemic, having also been explicitly
recommended by the Portuguese Securities Market Commission (the “Commission”).
On March 20th, this Commission issued a
formal recommendation regarding the company’s general meetings on which it was
endorsed the use of means of distance communication. This note issued by the
Commission came in fact as a reminder and not as a new instruction given that,
as seen above, the CCC already allows the holding of non-face-to-face general meetings.
Regarding situations where meetings have already been
convened prior to the restrictions on gatherings of people and travel imposed
by the Portuguese Government, it is understood by the Commission that the
change in the manner in which the meeting is going to be held can be made known
to the shareholders up to the time of the meeting by the same form of
communication used for the disclosure of the notice of the meeting.
Lastly, in situations where companies decide to use
the recommended telematic means to execute general meetings, it should also be
noted that it is highly recommended by the Commission that:
(i) The information that needs to be provided prior to
the general meeting shall exclusively be available on the company’s website
and, when applicable, on the Commission Information Disclosure System, in order
to minimise travel to the company’s headquarters for the purpose of consultation
of said information;
(ii) The exercise of voting rights, as well as the
exercise of information rights and other relevant communications in this
context should be made by e-mail, avoiding the risks of contagion and possible
delays inherent in postal communications; and
(iii) The means available to the chairman of the
general meeting to identify the shareholders that are present should effectively
provide a high level of certainty and security as to the reliability of such
records (attendance lists), to be specified in the notice convening the meeting
(should the need arise for the shareholder to promote some additional procedure
to this effect).
For any further questions or clarification on these
issues please do not hesitate to contact us.
Manuel Ferreira Mendes
Costa Pinto Advogados
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