VIEWS: 10 PAGES: 15 POSTED ON: 5/14/2011
Ministry of Science, Technology and Higher Education Decree-law no. 309-A/2007 of 7th September [Regulates the activity of mutual guarantee societies] The government decided, in the program submitted for approval by the Assembly of the Republic, to promote access to higher education improving attendance levels and actual completion of higher education degrees. Holding a higher education degree is a very important resource in terms of future learning, life-long planning and employability continuing to be a key factor in our economic, social and technological modernisation. The National Strategy for Reform in Higher Education, presented by the Prime Minister in Parliament on December the 21st, sets out to meet the terms referred to in the plan of the government and pinpoints the need to launch a student loan program as a matter of priority. Particularly activities linked with developing value creation are fundamental for the modernisation of society and economy, as well as for the technological development of the country, in particular the development of human resources in its different phases of training, and in its use and application. Those activities also respond to one of the fundamental challenges mentioned in the Technological Plan which has been approved by the Government. Additionally, the creation of lists of higher learning and graduate education in other countries has permitted the observation of an important group of repercussions at the level of business creation, ability to research and the linking of research itself to the economic and business sectors, besides giving better quality and implementation of resources. It is within this scope that complementing current direct State aid for education with a system of student loan guaranties for those in higher education is important and is a way to give incentives and broaden academic qualifications of the Portuguese, in such a way as to facilitate advanced training of human resources in Portugal. In fact, the implementation of a system of student loan guaranties for higher education proves to be a crucial instrument in the development of a policy of supporting education of the population in the highest step of the educational system, so envisioning fighting the existent lag in Portugal in terms of enrolment in higher education compared to the rest of Europe, which has higher credentials overall. Further, recently conducted international studies with a perspective on the European comparison of student life in higher education agrees with this viewpoint, especially in the area of the European initiative Eurostudent, as well as, and in particular, the study of socio-economic conditions of students in higher education in Portugal and their progress from a perspective compared on the European scale, as observed by the General Director of Higher Education, and which constitutes a contribution to an analysis of the national component within the European context. Also the recent global evaluation of the Portuguese higher education system conducted by the Organisation for Economic Cooperation and Development (OECD) recommends opening access to higher education and implementation of a system of students’ loans for those in higher education. Parallel to this, the program of the Government and the recent Commitment to Science for the Future of Portugal (Compromisso com a Ciência para o Futuro de Portugal) strive to reinforce the need Portugal has for investing in science and technology, making new public resources available that should be matched with innovative financial mechanisms that permit the maximization of activities involving research and development in Portugal. This makes a step to guaranteeing the involvement of students in higher education in activities which include research and development, as well as considerably increasing the number of doctoral, post- doctoral and research scholarship recipients, simultaneous with making new forms of incentives available for carrying out research and development activities in scientific institutions as well as in others, both public and private. The creation of mutual guarantee societies established by the Decree-law no. 211/98 of 16th July, altered by Decree-law no. 19/2001 of 30th January, was incorporated into the strategy of stimulating the Portuguese economy. These institutions were sketched out with the objective of facilitating access to the financial resources necessary for the undertaking of activities by micro-enterprises and small and medium-sized enterprises. This is achieved first and foremost through the granting of guarantees, since the size of said enterprises does affect their respective financing, particularly as far as price and time conditions are concerned. The guarantee agencies allow those enterprises also to receive guarantees for additional needs linked with their activity. Like other international guarantee systems, the Portuguese system of mutual guarantees is based on the existence of a public-private partnership in which mutual guarantee societies – credit institutions that are almost exclusively private and regulated and supervised by the Banco de Portugal (Portugal’s Central Bank) – are counter-guaranteed (co-insured) by a public fund, the Mutual Counter- guarantee Fund, managed by SPGM - Sociedade de Investimento, S.A. (the Portuguese Society of Mutual Guarantee), balancing in this way whether in the intervention capacity of mutual guarantee societies or in the multiplying effect of public funds allocated to determined objectives related to public politics. At the same time, rational and efficient management of resources is assured through mutual guarantee societies, given the necessary control mechanism and the supervision of the Banco de Portugal (Portugal’s Central Bank). As in other guarantee systems and according to the coming together of objectives between the main mission of this kind of societies – which foresee the dynamisation of the economic activity through the lending of guarantees to micro- enterprises and small and medium-sized enterprises – and the outlined objective of raising the overall degree of academic qualifications of the Portuguese people is then a goal to take advantage of the mutual guarantee system already developed in Portugal, allowing that such system plays a role at this level. Therefore mutual guarantee societies are endowed with an objective that makes students in higher education, doctoral scholarship recipients, post-doctoral students, researchers and scientific research as well as technological development institutions getting financing under better terms within the financing system. Finally, and attending to the development identified in the best international guarantee systems and in the market of micro-enterprises and small and medium- sized enterprises, the present legislative alteration is fine-tuned, especially in the sense of permitting mutual guarantee societies to set up so-called “portfolio guarantee operations”, which are rather common in micro-credit lines and in the support of entrepreneurship. Furthermore, the creation of operations in the scope of international protocols is considered destined to supporting the internationalisation of national enterprises, micro-enterprises and small and medium-sized enterprises in particular in line with what has been observed in the principle guidelines of the Technological Plan, the INOFIN - Programa Quadro para a Inovação Financeira no Mercado das PME (Framework Program for Financial Innovation on the Small and Medium-sized Enterprise Market ) and the QREN - Quadro de Referência Estratégico Nacional (National Strategic Reference Framework). The Banco de Portugal (Portugal’s Central Bank), the IAPMEI - Instituto de Apoio às Pequenas e Médias Empresas e ao Investimento (Institute for the Support to Small and Medium Companies and Investment) and the CMVM - Comissão do Mercado de Valores Mobiliários (Portuguese Securities Market Commission) were heard in this matter. Therefore: According to subparagraph a) of paragraph 1 of article 198 of the Portuguese Constitution, the Government decrees the following: Article 1 Alteration of Decree-law no. 211/98 of 16th July Articles 1, 2 and 3 of Decree-law no. 211/98 of 16th July along with the alterations introduced by the Decree-law no. 19/2001 of 30th January shall have the following legal drafting: «Article 1 [...] Mutual guarantee societies are credit institutions that have bank activity as an objective restricted to the realisation of financial operations and the offering of related services fixed in this contract to the benefit of microenterprises and small and medium-sized enterprises, or other collective persons, whatever be their legal nature, especially associations and groups complementary to/outside of enterprises, and private individuals, especially students and researchers. This is governed by regulation of the present decree and by the applicable conditions of the general administration of credit institutions and finance societies. Article 2 [...] 1 – …………………………………………………………………………….. a) Granting of guarantees destined to ensuring and complying with contractual obligations by beneficiary shareholders or by other juridical persons, singular or collective, non-shareholders, in the way of portfolio guarantee operations within the terms of paragraph 2, namely accessory guarantees of mutual contracts; b) …………………………………………………………………………….. c) …………………………………………………………………………….. d) …………………………………………………………………………….. 2 – For purposes of the regulation in subparagraph a) of paragraph 1, the granting of portfolio guarantees for special lines of credit, especially for micro-loans and for student loans to students in higher education, doctoral and post-doctoral scholarship recipients as well as researchers, depends on the recognition, both by mutual guarantee societies and by the general council of the Mutual Counter- guarantee Fund, on its interest in the economic and scientific development or in the promotion of innovation, and is intended to ensure the compliance of obligations accepted by those juridical persons, be they individuals or collective, in respect to entities that offered the above-mentioned special lines of credit. 3 – (Original paragraph 2.) 4 – (Original paragraph 3.) 5 – Societies of mutual guarantee may only carry out operations or offer services which benefit beneficiary shareholders for the development of their respective economic activities. 6 – Excluded from the regulation in the previous paragraph are the following operations: a) Guarantees that fit into paragraph 2; b) Guarantees issued in order to benefit non shareholders microenterprises and small and medium-sized enterprises in the way of agreements with other entities or guarantee systems outside the national territory. 7 – Entities which make special lines of credit available as referred to in paragraph 2 shall ensure, prior to the contracting of lines of credit, the condition of promoting shareholder of the mutual guarantee society. 8 – It is ensured in the contracting of portfolio guarantees covered in paragraph 2 that the promoting shareholder presume a portion of his/her participation in the social capital of the mutual guarantee society and upon which will stand as pledge in benefit of the mutual guarantee society as a compensation for the guarantee loaned by this society in the number of shares it has and in the terms that are fixed by the general council of the Mutual Counter-guarantee Fund, whether this society is able to execute the said function, dispossessing self of these shares according to the respective face value or selling them extra-judicially. Article 3 [...] 1 – …………………………………………………………………………….. 2 – Beneficiary shareholders can only be made up of microenterprises and small and medium-sized enterprises, representative entities of any of the categories of said enterprises, as well as other collective persons, especially complementary groupings of enterprises, that develop qualified activities for the mutual guarantee societies and for the general council of the Mutual Counter-guarantee Fund and in addition those having relevant economic interest. 3 – …………………………………………………………………………….. 4 – …………………………………………………………………………….. 5 – …………………………………………………………………………….. 6 – To avoid detrimental effects of regulations in the preceding paragraph, for the purpose of counting of the rights to vote the number of shares attested or registered to promoting shareholder, which may have been given as collateral to the partner mutual guarantee society according to the terms seen in paragraph 8 of Article 2 will be deducted.» Article 2 Derogation norm Legal or regulatory norms that restrict the objective of the Mutual Counter- guarantee Fund will become null and void in regards to the counter-guarantee of the guarantees offered by mutual guarantee societies in order to ensure the compliance with contractual obligations exclusively for beneficiary shareholders, specifically paragraph 1 of Article 2 of the Ministerial order no. 1354-A/99, of 31st December. Article 3 Revocatory norm Article 19 of Decree-law no. 211/98, of 16th July, is revoked along with changes introduced by Decree-law no. 19/2001, of 30th January. Article 4 Entrance into effect The present decree-law goes into effect the day after its publication. Article 5 Republication As an annex to the this decree-law, the republication of the Decree-law no. 211/98, of 16th July, with the changes introduced by the Decree-law no. 19/2001, of 30th January is presented. Reviewed and approved in Council of Ministers of 23rd August 2007. – José Sócrates Carvalho Pinto de Sousa – Fernando Teixeira dos Santos – Manuel António Gomes de Almeida de Pinho – José Mariano Rebelo Pires Gago. Promulgated on 5th September 2007 To be published The President of the Republic, Aníbal Cavaco Silva. Countersigned on 6th September 2007 The Prime-minister, José Sócrates Carvalho Pinto de Sousa. ANNEX Republication of the Decree-law no. 211/98, of 16th July. Chapter 1 General provisions Article 1 Premise Mutual guarantee societies are credit institutions which have banking activity restricted to the realisation of finance operations and to the offering of associated services covered in this document for benefiting microenterprises and small and medium-sized enterprises or other legal persons, whatever their legal nature, particularly associations or complementary business groups and singular persons, especially students and researchers, as is governed by regulation in the present document and by the applicable conditions set forth by the general scheme of credit institutions and financial companies. Article 2 Objective 1 – Mutual guarantee societies may carry out operations and offer services of the following types: a) Offering guarantees with the purpose of ensuring the carrying out of contractual obligations by beneficiary shareholders or by other juridical persons, whether single or collective, or non-shareholders within the scope of portfolio guarantee operations under the terms of paragraph 2, particularly accessory guarantees of mutual contracts; b) Promotion in favour of beneficiary shareholders of the securing financial resources within credit institutions or other financial institutions, national or foreign; c) Participation in the sale, in primary or secondary markets, of shares, bonds or any other type of securities as well as credit notes extended under the terms of Decree-law no. 181/92, of 22nd August, as long as the emitting entity is a beneficiary shareholder or as laid out in paragraph 2, and the offering of related services; d) Offering of consulting services to enterprises to beneficiary shareholders in areas associated with financial management, especially in matters of capital structure, of business strategy and of issues associated therewith as well as in the dominion of merger, split, purchase or sale of enterprises. 2 – For purposes of regulation in subparagraph a) of paragraph 1, the granting of portfolio guarantees for special credit lines, particularly for micro-credits and for students loans for higher education, doctoral and post-doctoral scholarship recipients and for researchers, depending on recognition by mutual guarantee societies and by the general council of the Mutual Counter-guarantee Fund, and on relevant interest for of economic and scientific development or for the sake of encouraging innovation and is designed to ensure the compliance with obligations associated therewith by those juridical persons, be they individuals or collective, in respect to entities that offer the above-mentioned special lines of credit. 3 – In addition to the securities put forth by beneficiary shareholders mutual guarantee societies may participate in the placing of securities that within the respective terms of issuance confer the right to subscription, be they convertible or changeable, by means of representative shares of social capital of beneficiary shareholders. 4 – Mutual guarantee societies may not underwrite, whether totally or partially, collocation of securities only being able to acquire through their own portfolio those securities referred to in paragraph 5 of Article 229 of from the Portuguese Securities Market Code and, in accordance with the rules that have been established by the Banco de Portugal (Portugal’s Central Bank), others that the latter may authorize. 5 – Mutual guarantee societies may only realise operations and offer services benefiting beneficiary shareholders for the development of their respective economic activities. 6 – In exception to the previous regulation are the following operations: a) Guarantees that fit into paragraph 2; b) Guarantees issued in order to benefit non shareholders microenterprises and small and medium-sized enterprises in the way of agreements with other entities or guarantee systems outside the national territory. 7 – Entities which make special lines of credit available as referred to in paragraph 2 shall ensure, prior to the contracting of lines of credit, the condition of promoting shareholder of the mutual guarantee society. 8 – It is ensured in the contracting of portfolio guarantees covered in paragraph 2 that the promoting shareholder presume a portion of his/her participation in the social capital of the mutual guarantee society and upon which will stand as pledge in benefit of the mutual guarantee society as a compensation for the guarantee loaned by this society in the number of shares it has and in the terms that are fixed by the general council of the Mutual Counter-guarantee Fund, whether this society is able to execute the said function, dispossessing self of these shares according to the respective face value or selling them extra-judicially. Article 3 Beneficiary shareholders and promoting shareholders 1 – Mutual guarantee societies have beneficiary shareholders and as long as their respective statutes stipulate the option they may also have promoting shareholders. 2 – Beneficiary shareholders may only be microenterprises and small and medium- sized enterprises, representing entities of any of such enterprises, as well as other collective persons, especially complementary groupings of enterprises that carry out qualified activities of relevant economic interest on behalf of mutual guarantee societies and for the general council of the Mutual Counter-guarantee Fund. 3 – The statutes of mutual guarantee societies should clearly define who might attain the capacity of a beneficiary shareholder. 4 – Mutual guarantee societies may not carry out operations nor offer services benefiting promoting shareholders. 5 – Promoting shareholders may not hold, whether individually or collectively, directly or indirectly, participation greater than 50% of the social capital or of the rights to vote in the mutual guarantee society, except in the first three years counted from the date of the founding of the society, a period in which the percentage is 75%. 6 – Without undermining the regulation of the previous paragraph for the effect of counting voting rights the number of shares attested to or registered in favour of promoting shareholders that have been giving as collateral in favour of a partner mutual guarantee society shall not be counted under terms covered in paragraph 8 of article 2. Article 4 Corporate name The corporate name of these societies shall include the expression “mutual guarantee society” or the abbreviation SGM that along with other abbreviations that could be confused with said abbreviation may not be used by other entities that are not covered in the present document. Article 5 Representation of the capital 1 – The shares representing the social capital of mutual guarantee societies must be registered. 2 – Registration records and deposit records in which the shares of the mutual guarantee society are registered and deposited should, besides having mentions and required facts in general terms, reveal the quality of beneficiary shareholder or promoting shareholder. Article 6 Realisation of capital The social capital of mutual guarantee societies may only be realised by means of cash investments without impairing the possibility of increase in social capital being made in the way of incorporation into reserves in general terms. Article 7 Authorisation and revocation of authorisation 1 – Mutual guarantee societies may not be made up of fewer than 20 beneficiary shareholders. 2 – Besides the reasons prescribed in the general terms authorisation to be a mutual guarantee society may be revoked if: a) For a period of more than 18 months the number of beneficiary shareholders has been less than 20; b) The general assembly does not approve general conditions for granting of guarantees within the time period of 180 days, counted from the date of formation of the society. Chapter 2 Activities of mutual guarantee societies Article 8 Financial resources Mutual guarantee societies may only finance their activity with their own funds and by means of the following resources: a) Financing extended by other credit institutions or by financial institutions, national or foreign; b) Loans and other forms of financing extended by shareholders in legally permissible terms; c) Issuance obligations of whatever type under the conditions covered by the law and outside of compliance with limits set in the Portuguese companies act. Article 9 Reserves 1 – A sum not less than 10% of the overall sum before taxes are imposed on each exercise by mutual guarantee societies to be destined for the making up of a provisional technical fund up to the limit of 10% of the balance of the portfolio of guarantees extended. 2 – Such provisional technical fund of the previous paragraph is destined for covering debts incurred through adverse conditions in the guarantee portfolio. 3 – A fraction of not less than 10% of liquid profits generated in each exercise of mutual guarantee societies should be destined to the formation of a legal reserve up to the limit of social capital. 4 – The Banco de Portugal (Portugal’s Central Bank) may raise either of the two percentages referred to in paragraph 1. Article 10 Offering of guarantees 1 – Mutual guarantee societies may not offer guarantees which favour beneficiary shareholders until they have not fully made the participation for which such title requires under the terms of paragraph 3 of Article 13 as a condition of such acquisition. 2 – Between the moments of granting a guarantee and the termination thereof shares that are part of the participation required by such title shall not be an object of transferral except in the cases covered in paragraph 4 and shall be given in collateral in benefit of the mutual guarantee society as counter-guarantee to the guarantee extended by that society. 3 – Both the non-transferral and the establishment of collateral are subject in general terms to recording in registry statements or in the deposit statements of the mutual guarantee society, subject to those limitations and responsibilities that may be registered or deposited there. 4 – In the case covered in paragraph 2 shares may be an object of transfer under the conditions that the statutes of the mutual guarantee society establishes if any of the following situations are identified: a) Split or merger of the beneficiary shareholder; b) Cessation of contractual position in the business thus resulting in guaranteed obligations; c) Death of the beneficiary shareholder. Article 11 Applicable framework to the granted guarantees 1 – (Revoked) 2 – The condition of partner, whether initially or subsequently, of the creating entity of guaranteed obligation will not affect the legal regulation of the guarantee extended which is regulated by rules and regulations of the present document, by legal and regulatory norms that in general terms may be applicable and by general conditions of granting guarantees fixed in the terms of paragraph 3 of Article 13. Article 12 Non-compliance of the guaranteed obligations 1 – In case of non-compliance by any of the beneficiary shareholders of an obligation that is guaranteed by the mutual guarantee society the latter may hold in general terms shares of a beneficiary shareholder as collateral in the terms of paragraph 2 of Article 10. 2 – Regardless of said agreement between the mutual guarantee society and the beneficiary shareholder in breach of contract those shares serving as collateral may be taken over by such society or be sold extra-judicially. 3 – In cases dealt with in the previous paragraph the worth of the shares for purposes of judicial sale will be the face value, the sale price not being able to be lower than such value. Article 13 Contract of society 1 – The contract of society of the mutual guarantee societies should include without exclusion of other elements called for in the general terms: a) Whether there is a possible existence of promoting shareholders; b) The entities that might subscribe to or on another basis acquire shares within the quality of beneficiary shareholder; c) The transferral of shares which in the terms of Article 14 are subject to the consent of the society as well as cases in which the make-up of collateral and of usufruct of actions is subject to the consent of the society; d) Specifying the justifications with which according to paragraph 5 of Article 14 the organ of administration of the mutual guarantee society may refuse the consent for transmission of shares and for what constitutes collateral or usufruct; e) The conditions under which in cases as referred to in paragraph 4 of Article 10 shares which act as collateral may be transferred. 2 – Besides the matters referred to in paragraph 1 of Article 34 of the Regime Geral das Instituições de Crédito e Sociedades Financeiras (general arrangement for the credit institutions and financial societies), alterations of statutes of mutual guarantee societies that deal with any of the matters indexed in subparagraphs b) and d) of paragraph 1 are equally subject to the authorisation of the Banco de Portugal (Portugal’s Central Bank). 3 – General assemblies of mutual guarantee societies should approve the general conditions of concession of guarantees especially the minimum sum of participation of which the beneficiary shareholder should be title-holder in order for guarantees to be conceded in said shareholder’s favour. 4 – The considerations referred to in the previous paragraph shall be communicated to the Banco de Portugal (Portugal’s Central Bank). Article 14 Transferral of shares 1 – Transferral of shares among beneficiary shareholders, among promoting shareholders and from promoting shareholder to beneficiary shareholders may occur freely. 2 – The transferral of shares from beneficiary shareholders or from promoting shareholders to new beneficiary shareholders shall be necessarily subject to the consent of the mutual guarantee society. 3 – Shares from beneficiary shareholders may not be transferred from beneficiary shareholders to promoting shareholders or to new promoting shareholders. 4 – The competency to offer or refuse consent for the transferral of shares belongs compulsorily to the organ of administration of the mutual guarantee society. 5 – The consent for transferral of shares may only be refused on the basis of verification in regards to the entity to which the shares are intended to be transferred of some of the requirements which the mutual guarantee society sets up for the possibility of subscribing to or, under another name, acquire shares in the quality of beneficiary shareholder. 6 – Should the consent for the transferral of shares be refused, in the period of 90 days counted from the date of refusal of consent the mutual guarantee society shall assume the responsibility of acquiring shares or making an acquisition of shares by means of a third party. 7 – In the situation laid out in the previous paragraph shares shall be acquired at face value. 8 – The regulations in previous paragraphs is applicable as well to the putting up of collateral or usufruct of shares which represent social capital of mutual guarantee societies with the necessary adaptations. Article 15 Acquisition and alienation of owned shares 1 – Besides the case prescribed in paragraph 6 of Article 14, whenever beneficiary shareholders request it the mutual guarantee society shall be obliged to procure the shares for which they are title-bearers and that under terms of paragraph 2 of Article 10 are not non-transferable, as prescribed in paragraph 7 of Article 14. 2 – The acquisition of shares belonging to mutual guarantee societies only is effective in respect to social exercise, remaining dependent upon the verification of the following conditions: a) Three years at least have passed since the date of share acquisition; b) The acquisition does not involve the non-compliance or the under- compliance with any relations or prudent limits prescribed by law or by the Banco de Portugal (Portugal’s Central Bank). 3 – For purposes of acquisition of owned shares the sum of the technical provisional fund for distributable assets referred to in paragraph 4 of Article 317 of the Portuguese companies act shall be increased. 4 – If the society does not have funds at its disposal that permit satisfaction or completely satisfy a request for acquisition of owned shares the funds will be held and until complete satisfaction the society will not be able to distribute dividends. 5 – Those shares of which the mutual guarantee society is the title-bearer are meant to be sold to beneficiary shareholders or promoting shareholders, or to third parties that wish to take on any of those qualities or, in the first case, fulfil such requirements. 6 – The sale will be made by the organ of administration and the price will be equal to the face value of the shares. Article 16 Merger and split 1 – The Banco de Portugal (Portugal’s Central Bank) will only grant authorisation for the merger or the split of mutual guarantee societies if from doing so it results in at least one society of the same kind. 2 – Mutual guarantee societies may not alter their respective social obligations that imply a change of the type of institution. Chapter 3 Counter-guaranteeing of mutual guarantee societies Article 17 Mutual Counter-guarantee Fund Mutual guarantee societies with the purpose of offering enough coverage and guarantee for risks that arise from its operations and with the purpose of assuring the solvency of the system shall rely on counter-guarantee of their operations by means of the Mutual Counter-guarantee Fund, for the outstanding balance at any moment of the guarantees extended and for the maximum limit of counter- guarantee accepted by that fund. Article 18 Managing entity of the Mutual Counter-guarantee Fund 1 – It is up to the managing entity of the Mutual Counter-guarantee Fund to promote and give incentives for the creation of mutual guarantee societies particularly by means of making initial investments in the capital of these in the quality of promoting shareholder. 2 – The managing society of the Mutual Counter-guarantee Fund has the right to designate of its own representatives in the council of administration of mutual guarantee societies for which it holds a corresponding participation of at least 10% of the social capital. Article 19 Beginning of the mutual guarantee system activity All the required procedures needed as a result of any split of SPGM - Sociedade de Investimento, S.A. (the Portuguese Society of Mutual Guarantee) are free from taxes and fees owed to whichever entity, namely the Registo Nacional de Pessoas Colectivas (the Portuguese national register of legal persons), registers of companies, firms, or associations and registers offices. Article 20 Entry into force The present decree-law comes into force on the very first day of the month immediately following the month of its publication.
"Ministry of Science_ Technology and Higher Education Decree-law no "