PORTUGAL Law and Practice Contributed by: João Nóbrega, Bernardo Marques and Francisco Miguel Gomes, EY Law – Sociedade de Advogados, SP, S.A.
• EU-Level Disclosure Requirements: The AIFMD and sustainability frameworks (Sustainable Finance Disclosure Regulation (SFDR)/Taxonomy) influence offering documentation and investor reporting. • Process and Execution: The CMVM’s digital filing channel is increasingly utilised, facilitating a steady cross-border dimension and predictable timelines for well-prepared transactions. 2. Funds 2.1 Types of Alternative Funds and Structures Under the Portuguese regime, AIFs are categorised into four types: real estate AIFs, private equity/ven - ture capital AIFs, credit AIFs and a residual category referred to as “other AIFs”. AIFs can be established as either contractual funds (without legal personality) or corporate investment companies (commonly referred to as “SICs”). They may be open-ended or closed-ended, as specified in their constitutive documents. In practice, private equity, venture capital and credit AIFs are typically closed-ended, while real estate AIFs can be found in both formats. Open-ended real estate funds are less common but generally represent a significantly larger share of the segment’s NAV. • Real Estate AIFs: These invest in eligible real estate assets, either directly or through qualifying real estate companies. They can be structured as either funds or SICs, with specific portfolio and govern - ance rules outlined in the regime. • Private Equity/Venture Capital AIFs: These focus on equity, hybrid and certain debt investments in port - folio companies that exhibit high growth potential. • Credit AIFs: Also known as loan funds, these AIFs are authorised to originate and acquire loans to eligible corporate borrowers. They are subject to specific prohibitions (eg, on lending to individuals or certain related parties), diversification and lever - age limits, as well as enhanced risk management and disclosure obligations that align with banking- style credit standards. • Other AIFs: This flexible residual category is designed for strategies that do not meet the “predominant elements” test of the other types.
Specifically, to be in this category, no single asset type may account for more than two-thirds of the fund’s total assets (subject to ramp-up rules in the regulation). This category accommodates mixed or innovative portfolios that may include both financial and certain non-financial assets, provided that the investment policy aligns with the regime. 2.2 Regulatory Regime for Funds Under Portuguese law, there are no unregulated funds; accordingly, every AIF must be established as a regulated entity. The applicable regulatory frame - work in Portugal varies by AIF category, particularly concerning investment limitations. Regulatory Approval Portuguese law outlines two procedural tracks for AIF constitution: prior authorisation and prior notification. The appropriate track depends on whether the fund is open-ended or closed-ended and the nature of its offering. Generally, privately placed closed-ended AIFs proceed via prior notification, while open-ended and publicly offered AIFs require prior authorisation. Under the prior-notification track, the CMVM does not conduct a substantive review of the constitutive docu - ments; it simply assigns a fund registration number upon verifying the completeness of the filing. In contrast, under the prior-authorisation track, the CMVM must decide within 15 days from the submis - sion of the relevant legal documentation whether to approve or refuse the AIF’s incorporation. If no deci - sion is made within this timeframe, the incorporation is automatically deemed approved. Required con - stitutive documentation includes management rules and regulations and a prospectus (not mandatory for closed-ended AIFs or those targeting only profes - sional investors), along with a Key Investor Informa - tion Document (KIID) where applicable or relevant professional-investor information for professional-only offerings. Investment Limitations (High Level) • Real Estate AIFs: At least two-thirds of total assets in all real estate AIFs must consist of real estate assets (the properties themselves, units in real estate funds, or shares in qualifying real estate
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