PORTUGAL Law and Practice Contributed by: Bernardo Abreu Mota, David Oliveira Festas and Francisco Albuquerque Reis, CS’Associados
2.5 Labour Law Regulations Overall, employees’ representatives and trade unions do not have any right to influence the conduct of an employer’s business or its major business decisions, although they do have the right to be informed and consulted about specific material issues that affect employees (eg, the transfer of the employees’ work - place) and, in certain cases, to offer an opinion on the matter (such as in the restructuring of companies). Transfer of a Business or Undertaking In the transfer of a business or undertaking, in whole or in part, all employees allocated thereto are auto - matically transferred to the acquirer of the business or undertaking, via the assignment by law to the lat - ter of the employer’s contractual position held by the transferor. This transfer entails the automatic acknowl - edgment of the rights acquired by the transferred employees under their employment relationship with the transferor, including those rights applicable to sen - iority and remuneration. The acquirer is liable for the payment of fines applied for labour misdemeanours as from the transfer date but connected to breaches of labour obligations occurring before such date, and the transferor is jointly and severally liable for all obli - gations that may become due up to the transfer date and for two years from that date. Regarding the formalities to be complied with, the transferor and acquirer of a business or undertaking are required to inform the employees’ representatives or, in their absence, the employees themselves of the dates and reasons for the transfer, and of the legal, economic and social consequences thereof, together with the proposed measures to be taken in respect of transferred employees, if any (the application of which is subject to an agreement). However, this requirement is deemed inapplicable in the total or partial transfer of the share capital of a company, as the target company remains the employer. Merger and Demerger Proceedings Within merger and demerger proceedings, employees’ representatives are entitled to consult the relevant documentation (including the respective project, cor - porate accounts and reports), and to issue an opinion regarding the merger or demerger procedure.
evant acquisition from the government; if the request remains unanswered or if no investigation is initiated within 30 working days of receipt of the request, con - firmation is deemed to be tacitly granted. 2.4 Antitrust Regulations Merger control provisions are highly relevant to M&A activity. A business combination or concentration that meets the following thresholds will become subject to prior control from the Portuguese Competition Author - ity ( Autoridade da Concorrência ): • the acquisition, creation or reinforcement of a market share equal to or greater than 50% of the domestic market in a specified product or service, or in a substantial part of it; • the acquisition, creation or reinforcement of a mar - ket share equal to or greater than 30% but smaller than 50% of the domestic market in a specified product or service, or in a substantial part of it, if the individual turnover in Portugal for at least two of the undertakings involved in the concentration exceeds EUR5 million (net of taxes directly related to such a turnover) in the previous financial year; or • the undertakings involved in the concentration reach an aggregate turnover in Portugal in the pre - vious financial year of more than EUR100 million, net of taxes directly related to such turnover, as long as the turnover in Portugal of at least two of these undertakings is above EUR5 million. Required notifications may be submitted to the Portu - guese Competition Authority at any time following an agreement on the concentration (there is no pre-deter - mined deadline for the purpose), provided that the concentration is not implemented before clearance is granted by the Competition Authority. In certain instances, relevant undertakings may also voluntarily notify the proposed concentration before the trigger - ing event. If the European Commission is competent to assess the projected concentration as per Council Regulation (EC) No 139/2004, of 20 January 2004, on the control of concentrations between undertakings (EU Merger Regulation), its competence prevails over that of the Portuguese Competition Authority.
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