PORTUGAL Law and Practice Contributed by: Manuel Requicha Ferreira and Diana Avillez Caldeira, Cuatrecasas
years. It is common to obtain financing from both commercial banks and the EIB, which requires the structure to be modelled in such a way as to ensure a higher ranking for EIB debt and, usually, guarantees from the financing commercial banks. Project bonds are not common but they have been used successfully in certain project finance deals. In the past, monoline structures were commonly used, particularly in railway and subway financing contracts, but nowadays they are much less prevalent. In recent years, particularly due to the banking crisis, investment funds using alternative funding structures have become active in this sector, similar to bond issuances. 8.7 Natural Resources The ownership of hidden mineral resources is vested in the state. Any entity that is interested in searching for or exploiting such resources needs to obtain an adequate licensing or concession title. The type of title that is required can vary depending on the type of resource sought, and on the type of activity. Usu- ally, mere exploration requires a simple licence, while exploitation will necessarily imply a concession. Min- ing rights can be acquired by direct negotiations with the licensing authority. However, in the case of oil and gas rights, it has been indicated that future rights will only be awarded as part of a competitive bidding pro- cess. Exploration and exploitation operations require ade- quate prior environmental assessment, subject to public discussion. Any protective or remedial actions identified as necessary are exclusively the responsi- bility of the licensee. Also, environmental rules on the protection of landscape are mandatory and must be implemented, including after the operation. For oil and gas operations, an investment plan is needed. The licensee is entitled to take and dispose of the production resulting from their activity, except for any quantities that may be due to the state as royalties that the state decides to take in kind. Exports are not subject to any specific duty or tax and are free, except if otherwise regulated by sanctions adopted by the UN or the EU, or by another competent international organisation. Exports in mineral resources can only
take place in association with an authorised operation or if they were legally imported. One should consider the restrictions that may arise under the FDI Screening Regulation, as well as under Decree Law No 138/2014, which establishes a safe- guard regime regarding key strategic assets to ensure the security of national defence, safety and the pro- vision of fundamental services in the national inter- est in the areas of energy, transport and communi- cations, and sets out specific restrictions on foreign investment by overseas entities (from outside the EU and the EEA). Such restrictions are considered on a case-by-case basis through the verification of certain criteria, following which the Portuguese Council of Ministers may oppose the completion of the relevant transaction over such key strategic assets. 8.8 Environmental, Health and Safety Laws Projects may be subject to environmental impact assessment, environmental incidence assessment and, sometimes, environmental licensing. The main environmental legislation applying to pro- jects is as follows: • Law No 19/2014, which enacts the Environmental Bases Policy; • Decree Law No 151-B/2013, which sets forth the legal regime for environmental impact assess- ments; and • Decree Law No 127/2013, which, together with Decree Law No 75/2015, regulates administrative proceedings related to the granting of pollution and emissions licences for several activities. The regulatory body that oversees environmental law is the Portuguese Environment Agency, which is an independent administrative entity supervised by the Environment Ministry. Decree Law No 273/2003 established the prerequi- sites regarding health and safety in projects that entail construction. It requires the use of a health and safety plan as well as the appointment of a safety co-ordi- nator, during both the drafting of the project and its subsequent execution. The Authority for Work Condi-
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