New rules on acts undertaken through electronic means of communication: particularly, commercial registry acts
Decree-Law nr. 16/2020 of April 15 (the “Decree-Law”) established a set of exceptional and temporary rules related to undertaking of several actions through electronic means of communication. The Decree-Law, safe for its article 5, came into force on April 16 and shall remain in force until June 30, 2020.
With the purpose of creating the conditions for the country’s economy to continue to function despite the existing emergency-state related limitations, the Decree-Law intends to enable the undertaking of specific acts at by electronic means, in order to i) speed up the progress of urgent proceedings currently pending before Justices of the Peace (“Julgados de Paz”), ii) ensure the progress of proceedings conducted by the National Industrial Property Institute (“Instituto Nacional da Propriedade Industrial, I.P.”), and iii) ease and expedite the undertaking of actions and the overall progress of civil, commercial, real-estate and vehicle registry processes. We will focus on this latter aspect, particularly on what concerns commercial registry.
In light of the current restrictions in face-to-face services, the Decree-Law provides for an additional channel to submit registry applications, which accrues to the already existing online register services. Specifically, the Decree-Law allows for registry applications, commercial or otherwise, that cannot be filed online through the Registries and Notaries Institute’s (“Instituto dos Registos e Notariado, I.P.” or “IRN”) website to be filed via e-mail to the respective register service, through a written request – using the IRN standard forms when these exist – signed with a qualified electronic signature and containing proof of payment of the respective fees.
Articles 6 and 7 of the Decree-Law provide for some changes in online registry applications, which are in some points unclear and potentially of little effect or usefulness in practice for the goals envisaged by the legislator.
Specifically, article 6 of the Decree-Law states that managers (“gerentes”), directors (“administradores”) and secretaries of commercial companies that submit online registry applications may certify the conformity of documents delivered in electronic form with the original paper form documents – it is a rule that almost entirely reproduces current article 32, paragraph 6 of the Commercial Registry Code (“CRC”) and article 43, paragraph 7 of the Real-Estate Registry Code, which were already in force when the Decree-Law entered into force.
Article 7 of the Decree-Law states that commercial registry applications regarding “the incorporation of companies, share capital increase and reduction and appointment of managers“ shall be considered urgent, thereby rendering the application for urgency and the payment of the corresponding fees unnecessary.
The list of acts subject to registry applications which the legislator deemed urgent is restrictive and omits some acts subject to mandatory commercial registry whose urgency could also be justified under the current circumstances – for example, the unification, division and transfer of participations (“quotas”) in private limited companies, the pledge over said participations, or the changes to a company’s articles of association, other than share capital increases or reductions. On the other hand, the urgency granted by the Decree-Law to the registry of share capital reductions in cases where that reduction is aimed at the distribution of assets to the shareholders is not entirely adjusted, and is limited practical effect, in light of article 7, paragraph 3 of Law 1-A/2020 of March 19, pursuant to which the deadline for creditors to oppose the distribution of reserves or annual profits foreseen in article 96 of the Portuguese Companies Code – which must mandatorily precede the distribution of those assets to the shareholders – should be considered suspended.
But the main question arising from the list of registry applications that are considered urgent under the Decree-Law is to know whether only those regarding the appointment of managers should be considered urgent, or if urgency should also apply to acts related to the termination of office (by resignation or dismissal) and the appointment of members of other corporate bodies, notably those of joint-stock companies. Considering the purpose of the Decree-Law and the wording or article 3, paragraph 1, subparagraph m) of the CRC, it is our opinion that all registry applications for the appointment and termination of all members of management and supervisory bodies that are subject to mandatory commercial registry should be, by analogy, deemed encompassed by article 7 of the Decree-Law and therefore considered and processed as urgent.
Finally, it is important to mention that the correction of deficiencies in registry applications submitted online or through other electronic means, as foreseen in the Decree-Law, shall be exempt from payment of fees, pursuant to its article 12.
Teresa Anselmo Vaz | [email protected]
Francisco Estácio | [email protected]