The Council of Ministers (CM) introduced changes to the Commercial Code (CCom), approved by the Decree-Law 2/2005 of 27 of December and changed by the Decree-Law 2/2009 of 24 April, through the Decree-Law 1/2018 of 04 of May (DL 1/2018).
For the mentioned changes, the CM obtained an authorization from the Parliament through the Law 20/2017 of 28 of December and they (changes) have the purpose of adjusting the CCom to the need of debureaucratization, flexibility and simplification of the procedures for incorporation of private companies.
So, we will make a brief analysis to the more important changes to the CCom under the DL 1/2018 in the following items.
Removal of the obligation of certification of the partners’ signatures before the Notary
The DL 1/2018 introduced changes to the article 90/1 of the CCom, establishing that the articles of incorporation are executed by written document signed by all partners, or their legal representatives, with notarial certification of the signature by similarity.
The DL 1/2018 also introduced changes to the article 147/4, establishing that the minutes of the meeting may be entered through a separate document, which must contain the signature of the partners.
In other words, with the changes in mention, the DL 1/2018 removed the obligation of certification of the partner’s signatures before the notary in the articles of incorporation and the obligation of notarial certification of the signatures on the minutes of the meeting entered through separated document.
These changes will surely contribute to simplify the procedures for incorporation of the private companies and procedures for validation of the partners’ deliberation, because they will significantly reduce the time that was spent by the partners in those procedures, namely: with frequent journeys of the partners to the public notaries to certify their signatures on the articles of incorporation or the promotion of meetings with the public notary officers made by the partners for certification of the signatures before them; with the submission of the minutes of the meeting signed by the partners to the public notary for certification of their signatures.
Establishment of the company´s registered office in precisely defined location
The DL 1/2018 introduced changes to the article 94/1 of the CCom, establishing that the company´s head office must be established in a precisely defined location, or, if inexistent, in the residence of one of the partners and, obligatorily, registered up to the beginning of the activities.
With this alternative of registration of the head office in the residence of one of the partners, the DL 1/2018 created conditions to eliminate situations of companies without registered office and that are used sometimes to defraud third parties acting in good faith. Therefore, this provision create condition for easily locate the partners of the companies in order to take responsibility whenever they use them to commit frauds.
Participation of the partners in the general meeting
The DL 1/2018 introduced changes to the article 130/2, establishing that the partners may be represented in the general meeting by the spouse, descendant or ascendant, by another partner, by the manager, by third part or by agent. This change conferred more liberty to the partner in the choice of his representatives in the general meeting, changing the previous regime in which the partner could be only represented by the spouse, descendant, ascendant or another partner. This change is very important, because it removes completely the legal limits on the partner to be represent by any person of his choice in the general meeting, which will contribute to the flexibility for indication of the representative to participate in the general meeting by the partners.
In the changes introduced to article 130/3, the DL 1/2018 dispel doubts that existed in relation to the procedures to be observed for the validity of the partner’s instrument of voluntary representation in the general meeting, because it established expressly that, for that effect, the signature of partner is all that is required. This change ended with the inconvenient that was sometimes faced by the partners in order to certify the signature on the instrument of voluntary representation so that it could be considered valid.
The changes introduced to the CCom by the DL 1/2018 are very important, mainly those mentioned in this analysis, because:
• They remove unnecessary formalities of the procedures for incorporation of private companies through the removal of the obligation of the certification of the partners´ signatures before the Notary on the articles of incorporation;
• They remove unnecessary formalities of the procedures for validation of the deliberation of the partners considering that they remove the obligation of notarial certification of the signatures of the partners on the minutes of the meeting entered by separate document;
• They create condition for establishment of registered offices and guarantee their easy location in case the companies are used to defraud third parties acting in good faith;
• Extend the number of representatives of the partners in the general meeting and dispel doubts of the sufficiency of the partner´s signature for validation of the instrument of voluntary representation issued by him.