Archive

Contrary to supplementary capital contributions, which always have money as an object, Ancillary Capital Contributions can consist of entries in kind, specific obligations or also money.

• Both private companies limited by Shares and Public Limited companies are admitted.
• Ancillary Capital Contributions depend on statutory disposition  that established an obligation to make the instalments. The article of association may impose to all or some of the partners the obligation to make payments  besides the entries, as long as the essential elements of this obligation are set and the payments to be done whether in return for payment or free of charge are specified (article no. 209 of the Portuguese Commercial Companies Code for limited companies limited by shares, no. 287 for public limited companies).

The statuses may affect the obligation of additional instalment to a prior deliberation  of a general assembly, but its accomplishment is not mandatory –  the execution of the contract may be established by the governance body.

• Ancillary Capital Contributions may be free of charge or in return for payment, in other words, can include interest or not, and they may or not have a counterpart from the company.
• If the rewarding is established, the consideration may be paid regardless the existence of profit from the company (article no. 209 of the Portuguese Commercial Companies Code); however, with public limited companies, the rewarding shall not exceed the value of relative instalment – in other words, the value of the consideration cannot exceed the value of the additional Instalment itself.

Contrary to supplementary instalments, the non-fulfilment of Ancillary Capital Contributions doesn’t affect the situation of the partner as such!

The non-fulfilment of the obligation to make the Ancillary Capital Contributions has as consequence the creation of a credit right over a partner. Nevertheless the mention non-fulfilment doesn’t allow the end of participation and exclusion of the partner from the company, except if the article of association establishes that exclusion.

• To assess the regime to be applied in the event of non-compliance, as the debt or  equity will depend  essentially of the onerous or free of charge nature of the Ancillary Capital Contributions, and the possibility of their restitution.
• Ancillary Capital Contributions expire with the dissolution of the company.

www.fa-legalonline.com | Ancillary Capital Contributions | Corporate Law

Technological Transfer

With the conclusion of the technological transfer contracts, the parties aim towards the transmission of research findings of an organization to another, with the purpose of posterior development of its commercialization (granting of licenses in the technological domain).

These technological transfer contracts have contributed usually to improve economical efficiency and promote competition, given that they can reduce the duplication in matters of research and development, reinforce the incentives in favor of new research and development actions, promote  incremental innovation, facilitate the dissemination of technology and boost the competition in the markets for developed products.

The technological transfer contracts have an underlying license of  Industrial Property Rights (”DPI”) and can be subjected to the regulation and control of anti-competitive norms!

Due to its relevance, we highlight the duties of the Licensor, namely:

• Obligation to facilitate the use of license, namely through the maintenance of the DPI at issue (e.g. Payment of records and renewals, where they exist) and of its legal effective protection against  alleged infringers, i.e., it’s one of the counterpoints of mandatory counterpart payment by the Licensor;
• Responsibility for the damages arising from the violation of contractual obligations;
• Obligations related to other license applications: in some non-exclusive licensing contract, some terms of “most favourable treatment” are stipulated, in benefit of the Licensor, through which the Licensee commits himself to review the contract in order to extend more favorable contractual terms offered to the third;
• Obligations related to the improvement of licensed technology: the obligation to give the Licensee any improvements done by the Licensor on the licensed technology during the contract period can be stipulated;
• Guarantees: Depending on the nature of the contract parties (e.g. If they are companies or consumers) and the object of the license, legal guarantees can be applied to the contract. On the other hand, the parties may define the issuing of guarantees by the Licensee, which will necessarily have effects in other contractual rendering (for example, in a licensing contract and software maintenance , the rendering of maintenance services can’t be done or remunerated in the guarantee period);
• Compensation for breaching the rights of intellectual property.

Consortium Contract – Characteristic and key elements:

If I enter into a Consortium contract with third parties , do i get a new partner/shareholder?

According to the first article of the decree no.231/81, of July 28th, the Consortium is an agreement, through which two or more people, singular or collective, who exercise an economical activity compel each other, concertedly, to accomplish a given activity or perform a certain contribution aimed to pursue any of the following objects:

a) The accomplishment of material or legal preparatory actions either from a certain project, or from a continuous activity;

b) The execution of a certain project;

c) The supply to third parties of goods, equal or complementary among themselves, produced by each of the consortium members;

d) The research and exploration of natural resources;

e) The production of goods that can be divided, in kind, between the members of the consortium.

The members of the consortium don’t  exert a common activity, because each one carries on exercising their own, even though it is concerted in the activities of the other members.

When the accomplishment of a contractual object involves the rendering of any contributions, it shall consist of something tangible or of the use of something tangible; cash contributions are only allowed if all the members make the contribution in the same kind.

The Consortium can be internal or external.

A consortium is internal when:

a) The activities or goods are given to one of the members of the consortium and only this member establishes relations with third parties;

b) The activities or goods are supplied directly to the third  parties by each and every member of the consortium, without expressed evocation it.

It is external when the activities or goods are supplied directly to  the third  parties by each and every member of the consortium, with expressed evocation it.

The bodies of the Consortium are:

– Consortium Leader – a mandatory position.

– Guidance and Supervision Council – optional but its existence is advisable.

www.fa-legalonline.com | Civil Law

Construction Services New Licence Law – Major Changes

Law 41/2015, of June 3rd – Major changes to the Decree 12/2004, of January 9th
The Law 41/2015 of June 3rd introduced significant alterations to the license regime, of which some are listed below:

• There is now the need for two licenses and two certificates: License/Certificate of Public Works Contractor and License/Certificate of Private Works Contractor License
• The category of General Contractor/Constructor ceases to exist
• There are now more subcategories – 59 instead of 55 (for the Contractors)!
• Some of the categories/subcategories for the Public Works Contractors License are eliminated
• The entry and staying requirements for public works remain the same, but are reduced for the private works.
• The Licenses and Certificates are issued for indefinite time, however there is now an annual Unofficial Control.
• It is now demanded the payment of an annual fee, considering the largest class owned.
• Definition of less demanding requirements for Businesses established in other States.
• Modification of the value of the rates (Decree 261 – A/2015 of August 27th)

We stress some of the (new and controversial) incumbent duties on the Businesses:

• Public Works Contracts: Have the qualification that includes subcategories in classes, which covers the total value of the construction!
• Assure the reduction of written Private Works Contacts, in the case of works superior to 10% of the value of class 1 and maintain a 10-year-archive.
• Subcontract works to companies duly qualified and reduce written contracts
• Communicate to the Institute of the Public Markets, Real Estate and Construction (IMPIC), in the 15 days following the respective verification:
  i) Alterations in the entry requirements (reputation, technical and economical ability and ownership of an accidents at work insurance);
  ii) Alterations to the headquarters local;
  iii) Being the object of a declaration of insolvency;
  iv) Others
  As a footnote it is still important to stress that the IMPIC is a competent authority to proceed to the issue/reclassification of the processes of licenses and certificates, as well as for the unofficial control of the compliance of the entry and straying requirements.

Construction Services New Licence Law – Major Changes | www.fa-legalonline.com