PORTUGAL Law and Practice Contributed by: Manuel Magalhães, Mafalda Ferreira Santos, Francisco Boavida Salavessa and Maria José Lourenço, Sérvulo & Associados
• its creditors; • the Public Prosecutor’s Department (when repre - senting entities whose interests it is legally obliged to protect, such as tax authorities or the social security office); or • any person liable for the debt. 1.3 Statutory Officers In the Portuguese legal system, the statutory officers are typically: • the judicial administrator, which is designated as “provisional judicial administrator” or “interim administrator” within the PER and PEAP, and as “insolvency administrator” within insolvency pro - ceedings; • the creditors’ committee, which may be created or waived depending on the existence of certain preconditions laid down by law; • the creditors’ meeting, composed of the insolvency creditors; and • the business recovery mediator, who intervenes within the RERE procedure. Officers’ Interaction With Directors of the Debtor As a general rule, the declaration of insolvency deprives the insolvent’s directors of their powers of administration and disposal of the assets of the insol - vent estate, even if the board of directors remains in operation. The directors of the debtor are obliged to provide all the relevant information requested by the insolvency administrator, the creditors’ meeting or the creditors’ committee, and to co-operate as requested by the insolvency administrator. The insolvency administrator interacts more closely with the debtor’s directors, particularly in a PER or in insolvency proceedings where the management is entrusted to the debtor. In this context, the judicial administrator supervises the debtor’s management and, in certain cases, consents to or intervenes in acts considered to be of special relevance. The creditors’ committee does not typically establish a direct relationship with the debtor’s directors, its main role being to supervise the activity of the insol - vency administrator.
The creditors’ committee or the creditors’ meeting (if there is no creditors’ committee) must consent to legal acts that (according to the CIRE) are of special impor - tance to the insolvency proceedings. Selection, Appointment and Replacement of Officers Judicial administrator The judicial administrator is appointed by the judge, who may accept the debtor’s request for a specific person to be appointed on a reasoned basis (once the assumptions set out in the CIRE have been met). As a rule, the judicial administrator is chosen from among those on the official lists. The appointment of a person not included on said list can take place in duly justified cases. The judicial administrator appointed by the court may be replaced by another person elected by the insol - vent’s creditors, provided that the respective legal requirements are met. The creditors’ committee This is usually comprised of three or five members appointed by the judge, with the largest creditor as president and the others representing the various classes of claims, except for subordinated claims. Where applicable, the committee should also include a representative of the employees. The creditors’ meeting has certain powers in connection with set - ting up, dispensing, replacing or appointing additional members of the creditors’ committee. The creditors’ meeting The creditors’ meeting is comprised of all the debtor’s creditors. The business recovery mediator The business recovery mediator is appointed by the Agency for Competitiveness and Innovation ( Agência para a Competitividade e Inovação , or IAPMEI). Statutory Roles, Rights and Responsibilities of Officers Judicial administrator Within a PER, the provisional judicial administrator must monitor the debtor’s business, confirming that
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