PORTUGAL
As at 3 January 2018
By Catarina Serra
Professor at the University of Minho
| Proceedings | Elements of the Directive already included into the national legislation |
| Special revitalisation proceedings Confirmation by the court of a negotiated restructuring plan (where there are dissenting minority creditors) – only for traders (companies and sole traders) in pre-insolvency. |
Complies, in general terms, with articles 5, 6 and 7, 10, 13, 14, 15, 16 and 17. NB: Deviating from the provision of article 14(2), the confirmation by the court extends the effects of the plan to all creditors, irrespective of their involvement in the adoption of the plan. |
| Special proceedings aimed at drawing up a payment plan Confirmation by the court of a negotiated payment plan (where there are dissenting minority creditors) – only for non-traders (natural or legal persons) in pre-insolvency. |
Complies, in general terms, with articles 5, 6 and 7, 10, 13, 14, 15, 16 and 17. NB: Deviating from the provision of article 14(2), the confirmation by the court extends the effects of the plan to all creditors, irrespective of their involvement in the adoption of the plan. |
| Out-of-court restructuring proceedings |
Complies, in general terms, with articles 5, 6 and 7, 10, 13, 14, 15, 16 and 17. NB: Deviating from the provision of article 14(2), the (exceptional) confirmation by the court extends the effects of the plan to all creditors, irrespective of their involvement in the adoption of the plan. |
| Proceedings | Elements of the Directive which may be included into the national legislation |
| Special revitalisation proceedings | There is an ongoing (doctrinal) discussion about the benefits of introducing article 9 (separation of creditors into classes) and article 11 (cross-class cram-down) into national legislation, but there are no plans for reforms yet. Article 18 is also matter of (doctrinal) debate since there are no explicit rules to incentivise directors to pursue early restructuring. |
| Special proceedings aimed at drawing up a payment plan | Idem, except in what concerns article 18 (not applicable). |
| Out-of-court restructuring proceedings | Only for companies and sole traders with organised accounts in pre-insolvency. There are no current discussions or plans for amendments, as these proceedings are expected to be eliminated in the short term and replaced by the out-of-court corporate restructuring regime. |
| Out-of-court corporate restructuring regime | New regime expected to be introduced in the short term. Only for traders (companies and sole traders) in pre-insolvency. 2 possibilities: - Deposit of a previously negotiated restructuring plan - Deposit of a memorandum and negotiation of a restructuring plan. The effects of the new regime are, generally, restricted to the parties in the agreement. In the first case, the opening of the proceedings will entail tax benefits, a stay of individual enforcement actions and exemptions to transaction avoidance. In the latter, it will entail a stay of individual enforcement actions and the impossibility on the part of creditors to withhold performance or terminate essential contracts which are necessary for the continuation of the day-to-day operation of the business for a maximum period of 3 months. Exceptionally (if there are dissenting minority creditors), the proceedings may turn into special revitalization proceedings, with the confirmation of the restructuring plan by the court. |