PORTUGAL Law and Practice Contributed by: Manuel Requicha Ferreira and Diana Avillez Caldeira, Cuatrecasas
several provisions that relate to sustainable lending. More recently, in 2024, the voluntary carbon market, a system for buying and selling carbon credits that gen- erate economic incentives to leverage the implemen- tation of projects to reduce greenhouse gas emissions or sequestrate carbon, was established in Portugal through Decree-Law No 4/2024, as amended, and Ordinance Nos 239/2024, 240/2024 and 241/2024. 2. Authorisation 2.1 Providing Financing to a Company The granting of loans or other financing, including factoring, financial leasing and guarantees, on a pro- fessional basis is a regulated activity. Non-banks are, in principle, not authorised to provide financing to a company incorporated in Portugal, unless they incor- porate one of the relevant credit institutions or finan- cial companies authorised by the regulator to do so. EU-domiciled banks may benefit from the EU passport established in Capital Requirements Directive (CRD) IV, and may be registered with the Bank of Portugal in order to carry out credit activities, allowing them to provide services on a cross-border basis without establishing a local presence in Portugal. This regis- tration process is initiated by a notification made in the bank’s home country indicating the activities that the entity wants to carry out in Portugal, which is then sent by the entity to the Bank of Portugal for registration. Upon receiving such notification, the credit institution or financial company may begin to provide its services in Portugal under the EU passport system. However, non-EU-domiciled entities are only allowed to carry out banking activities in Portugal if they set up a branch or establish a subsidiary, both of which require specific authorisation from the Bank of Por- tugal. The reverse solicitation principle, or passive market- ing rule, is a generally accepted principle in the case of the provision of services by a non-EU-domiciled entity on the initiative solely of the client. According to the reverse solicitation principle, or passive mar- keting rule, if a Portuguese-domiciled client directly contacts a non-EU-domiciled entity and requests a
specified banking service on its own initiative, without any prior solicitation and marketing of such service by the entity, the aforementioned registration/authorisa- tion with the Bank of Portugal should not be required. If the credit operation is an isolated transaction, and there will be no further transactions in the future, it should not qualify as a professional credit activity according to the definition thereof. 3. Structuring and Documentation 3.1 Restrictions on Foreign Lenders Providing Loans Please refer to 2.1 Providing Financing to a Com- pany . 3.2 Restrictions on Foreign Lenders Receiving Security The granting of security or guarantees is not restrict- ed. However, there are certain corporate limitations that govern such granting in general (and not only to foreign lenders). In accordance with the Portuguese Companies Code (PCC), companies can only grant guarantees or security to third parties provided that they: • have a justified corporate self-interest; or • are in a control or group relationship with the ben- eficiary of the security or guarantees. Furthermore, the PCC includes a prohibition on finan- cial assistance (see 5.4 Restrictions on the Target ). For tax purposes, secured obligations are typically limited to an agreed maximum amount, which is usu- ally linked to the value of the asset being encumbered or to the intrinsic value of the Portuguese target or subsidiary company. 3.3 Restrictions and Controls on Foreign Currency Exchange There are no restrictions or controls regarding for- eign currency exchange, and there is no limitation on the expatriation of dividends or investments abroad. However, certain financial transactions are subject to
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