PORTUGAL Law and Practice Contributed by: Susana Braz, Jaime Costa and Tomás Simões, Santiago Mediano e Associados, SP, RL
shareholders, passed by a simple majority, and must be initiated within six months of the reso - lution. The Shareholders Regardless of any claim for compensation for individual damage they may have incurred, one or more shareholders holding at least 5% of the share capital, or 2% in the case of a company with publicly traded shares, can file a lawsuit against directors seeking compensation for damages the company has incurred, in favour of the company, when the company itself has not pursued such a claim. Shareholders holding at least 10% of the share capital may file for the judicial removal of a direc - tor if the shareholders’ meeting has not yet been convened for that purpose. Any shareholder, regardless of the percentage of the share capital participation, may file for the judicial removal of a director in the event of insider trading. Company Creditors If neither the company nor its shareholders file a lawsuit against the directors whose wrongful conduct has led to the company’s inability to meet its financial obligations, the company’s creditors are entitled to file such a claim. Third Parties Any third party that may have incurred damages due to a director’s breach of duties may also file a claim against them. 4.9 Other Bases for Claims/Enforcement Against Directors/Officers Other Bases for Claims – Criminal Liability Directors may also be held criminally liable for intentionally:
• failing to convene a shareholders’ meet - ing upon becoming aware that the annual or intermediate accounts evidence a loss of more than half of the company’s share capital, and failing to propose the dissolution of the company or the reduction of its share capital; • omitting acts required for the realisation of the share capital; • acquiring for the company its own shares, or financing or guaranteeing such acquisition, in violation of the law; • illicitly distributing the company’s assets; • not convening the meetings required by law or inserting therein false information; • obstructing the proper functioning of the gen - eral meeting or assisting anyone to partici - pate therein by presenting false documents; • refusing, in any meeting, information which, by law, is mandatory and that has been requested in writing for the approval of the financial year accounts; • providing false or incomplete information when obliged to provide accurate information regarding the company; • refusing to draw up the minutes of the meet - ings; • preventing the supervision of the company; • failing to comply with the requirements for the issuance of the shares certificates; and • refusing or delaying access to the documents required for the preparation of any sharehold - ers’ meeting. Limitation of Liability The liability of a director cannot be limited. The CSC provides that any provision that excludes or limits the liability of directors is null and void. The company may, however, resolve to waive its right to claim compensation from a director. This requires a resolution of the shareholders’ meeting and must not be opposed by minority
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