General Statement of Opinion

Following the expression of doubts by the management bodies of property investment funds as regards the need to get prior authorisation by the CMVM before acquiring property which is already being leased to entities whose situations correspond to those outlined in paragraphs c) to h) of Article 22.1 of Decree-Law Nº 294/95, of 17 November, the Executive Board of the CMVM has approved the following general statement of opinion, pursuant to the terms of Article 370.2 of the Portuguese Securities Code:

1. The law - Article 22.3 of Decree-Law Nº 294/95 of 17 November - merely refers to the fact that the leasing of the underlying assets of a property investment fund to those entities referred to in paragraphs c) to h) of Article 3 of the same Decree-Law depends on prior authorisation by the CMVM following a request by the management body of the fund, with the appropriate justification.

2. However, the CMVM understands that it must interpret the said rule as being applicable to situations whereby, although a lease is not signed for the property in question, the contractual position of lessee of the property is transferred subsequent to the acquisition of the property, whereby the lessee of the property corresponds to the terms of paragraphs c) to h) of Article 22.1 of the aforementioned Decree-Law.

3. In the legal situations mentioned therein, the purchaser becomes the lessee by legal subrogation, and not by the signing of a lease. However, given that material identification exists in both cases, the aims of this rule, namely the safeguarding of the interests of participants in investment funds, are justified in situations where conflicts of interest may be detected in abstract terms.

4. Thus, the transfer of the position of lessee through the acquisition of the rights on which the lease was based is also subject to prior authorisation by the CMVM. If this were not the case, the law governing such activities would easily be broken, and conflicts of interest would arise, thus putting at risk the safeguarding of the interests of those involved.