CMVM Regulation No. 5/2008
(With the amendments introduced by
CMVM Regulation No.5/2010)
The amendments to the Securities Code introduced by Decree-Law No. 357-A/2007, of 31 October, emanating from the transposition into national law of Directive No. 2004/109/EC of the European Parliament and the Council of 15 December, and Commission Directive No. 2007/14/EC, of 8 March (the Transparency Directive), led to the inclusion of disclosure requirements in the Securities Code by issuers of securities previously envisaged in the CMVM Regulation No. 4/2004 of 11 June.
It was necessary to keep certain rules in the Regulation reserved for unlisted public companies as the amendments to Articles 244 et seq. of the Securities Code, particularly Article 249, only refer to the issuers of securities admitted to trading on a regulated market.
Particularly important amendments envisaged by this regulation are those that refer to the content of the quarterly financial information and the system of notifying and disclosing the acquisition and disposal of own shares and the disclosure of the transactions envisaged in Article 248 - B of the Securities Code.
Thus, pursuant to Article 5/2, Article 247/b) to /e), /h) and /i), Article 367, Article 369/1, of the Securities Code, and Article 9/n) of the CMVM Statute, approved by Decree-Law No. 473/99 of 8 November, the Executive Board of the CMVM (Comissão do Mercado de Valores Mobiliários) approved the following Regulation:
Disclosure of Information relating to Public Companies
The following information relating to public companies should be disclosed:
a) Exercise of subscription, incorporation and acquisition rights to securities, namely as a result of mergers or demergers;
b) Exercise the rights to convert securities into shares;
c) Changes to the attribution of voting rights in qualifying holdings;
d) Filing for insolvency, judgement initiating the insolvency proceedings or dismissing the filing for insolvency, and also the approval and official confirmation of the insolvency plan;
e) Increase or reduction of share capital;
f) Information on applications for admission to regulated markets and respective decisions;
g) Convening a general meeting to determine the loss of public company status.
Qualifying Holdings Notification
1 - In addition to that required by Article 16 of the Securities Code, the statement on the acquisition or changes in qualifying holdings should include an indication of the specific legal fact that led to theallocation and, where applicable, the number of shares acquired or disposed of and the location of the transaction.
2 - The notification on the changes to the attribution of voting rights in qualifying holdings should be disclosed within the same time period applicable to the notification of acquisition or disposal of qualifying holdings and should include the details referred to in the preceding paragraph and Article 16/4 of the Securities Code.
3 – For the purposes of the preceding paragraph, changes to the attribution are only relevant when the withdrawal of the initial attribution if not accompanied by its replacement would have caused compliance with the disclosure requirements envisaged in Article 16 of the Securities Code.
4 - The public companies not covered by Chapter II of this Regulation shall annually publish a list of holders of qualifying holdings, including the number of shares held and percentage of voting rights, calculated in accordance with Article 20 of the Securities Code. This notice should be published within 15 days after the approval of the Annual Report and Financial Statements by the competent authorities.
Information on long position on shares
1 – Any entity reaching or exceeding a long position of 2%, 5%, 10%, 15%, 20%, 25%, one third, 40%, 45%, half, 55%, 60%, two thirds, 70%, 75%, 80%, 85% and 90% of the share capital of a issuer subject to Portuguese Law, whose shares are admitted to trading on a regulated market located or operating in Portugal and whoever reduces its position to a value less than any of the thresholds mentioned above, shall within four trading days of the occurring fact, inform the CMVM and the invested company.
2 – The long position includes:
a) Those shares whose voting rights are attributable pursuant to Article 20 of the Securities Code;
b) The agreements or financial instruments of similar economic effect to holding shares, that alone do not generate the attribution of voting rights, held directly or by third parties who are within the situations set forth in Article 20/1 of the Securities Code, namely:
i) Contracts for Differences;
ii) Cash-Settled Swaps;
iii) Cash-Settled Options;
iv) Cash-Settled Futures and Forwards Contracts.
3 – Similar economic effect to holding shares means the exposure to benefits resulting from the increase and to the risks due to depreciation of share prices via an agreement or the acquisition of a financial instrument.
4 – The agreements or financial instruments that have an index or basket of shares as their underlying asset are only relevant when a specific listed share represents more than 20% of the total value of the basket or index.
5 –To calculate the thresholds set forth in paragraph 1, it is relevant the number of shares that the counterparty would need to fully cover the risk exposure undertaken with the agreements and financial instruments set forth in paragraph 2/b of this article; the delta used for its calculation shall take into account the implied volatility of the agreement or financial instrument, as well as the last closing price of the underlying asset.
6 – The invested company shall disclose, by the means set forth in Article 244/4 of the Securities Code, all information received provided for in this article, as soon as possible and within the maximum deadline of three trading days subsequent to receiving the information.
7 – The information set forth in paragraph 1 shall include:
a) Concerning the attributable voting rights, the elements required pursuant to Article 16 of the Securities Code and Article 2 of this Regulation;
b) Concerning the agreements or financial instruments with similar economic effect to that of holding shares:
i) The main features of the agreement or financial instrument;
ii) The number of shares, share capital percentage and voting right percentage as to the agreement or the financial instrument;
iii) The expiry or maturity date.
The duty set forth in the previous article does not cover:
a) The agreements or financial instruments with similar economic effect to that of holding shares by credits institutions or investment companies authorised to provide investment services in Portugal due to acting as a counterparty and following a request from a client, who under said way, acquires the corresponding short positions on the same shares;
b) The agreements or financial instruments with similar economic effect to that of holding shares by financial intermediaries as market-makers, under the situations and conditions set forth in Article 16-A/3 and/4 of the Securities Code with the relevant adaptations
Disclosure of Material Facts relating to Issuers of Shares or other Securities conferring the Right to Subscribe or Acquire
In addition to the facts mentioned in Article 1/c), /e) and /f), the issuers of shares or other securities giving the right to subscribe or acquire envisaged in Article 244/1 of the Securities Code, should disclose the following:
a) Composition of the administrative and supervisory boards, and also the presiding board of the shareholders' meetings if any, details of the statutory auditor and respective changes;
b) Appointment and replacement of Company Secretary;
c) Appointment and replacement of Market and CMVM Liaison Representative;
d) Allocation of credit rating of the issuer with said issuer's consent thereto and any subsequent amendments.
Disclosure of Material Facts relating to Issuers of other Securities
1 – The issuers of securities referred to in Article 244/1 of the Securities Code and not envisaged in the preceding Article should disclose:
a) The facts referred to in Article 1/d), /e) and /g) and Article 3/a) and /c);
b) The allocation of securities credit rating with the issuer's consent and any subsequent amendments;
c) Non-compliance by securities holders;
d) The withdrawal of securities due to knock-out conditions, where applicable.
2 – In addition to the facts mentioned in the preceding paragraph, the issuers of debt securities should disclose the following:
a) The material fact envisaged in Article 3/d);
b) The appointment and replacement of the joint representative of securities holders, where applicable.
c) The entities that issue securities envisaged in paragraph 1 by means of a public offer shall disclose the information referred to inArticle 1/d), /e) and /f) and in paragraph 1/b), /c) and /d), even if the securities are not admitted to trading on a regulated market.
4 - The provisions of this Article shall not apply to securities issuances of less than one year.
General Disclosure Means
1 - Without prejudice to the provisions of the following paragraphs, the information required by this Regulation is:
a) Submitted to the CMVM Information Disclosure System pursuant to Article 367 of the Securities Code;
b) Disclosed in order to allow investors from all over the European Community swift access within the time periods specifically prescribed and without any specific costs for said information in a non-discriminatory basis pursuant to Article 244/4/a) and /5 of the Securities Code;
c) Placed and kept on the Internet website of the issuer for one year, pursuant to Article 244/7 and /8 of the Securities Code.
2 – Sub-paragraphs b) and c) of the preceding paragraph are not applicable to information required under this Regulation in respect of public companies that do not have securities admitted to trading on a regulated market.
3 - Information relating to issuers as required by the Securities Code or the CMVM Regulation should be submitted to the CMVM Information Disclosure System, whenever the disclosure means is not specifically laid down.
4 – The disclosure of information in the CMVM Information Disclosure System should not be carried out after its disclosure by other means.
5 - Changes or rectifications to the information disclosed should be disclosed through the same means and conditions as the information being amended or rectified.
Duty of Secrecy on Inside Information
Issuers must maintain confidentiality on the existence and content of inside information until its disclosure in accordance with legal requirements, after which the disclosure of said information may take place via other means.
Deadlines for Disclosures
1 - Unless other specific deadlines have been specifically set out, disclosure in compliance with the disclosure requirements envisaged in the Securities Code and the preceding Articles of this Regulation should be carried out within the following deadlines:
a) Within seven days from the date of the resolution by the competent corporate boards or the date of the document that legally proves the fact disclosed;
b) In other cases, immediately after the factual finding.
2 - The notice of the facts referred to in Article 249/2/b) of the Securities Code and Article 1/a) and /b) should specify a deadline for exercising the rights or carrying out the transaction concerned and should be disclosed at least five working days prior to the effective date of the exercise of rights or transaction.
3 - The dividend payment announcement should specify the deadline for its exercise, and be disclosed at least 10 days prior to the effective payment date.
4 - When the announcement on the exercise of rights relates to a public offer, disclosure may not precede CMVM’s approval of the prospectus, unless the CMVM authorises prior publication provided that:
a) After preliminary examination of the application, the approval of the prospectus is considered to be feasible;
b) No disruption to the parties concerned or the market shall be caused; and
c) The notice to be published includes a reference to the fact that the offer is subject to prior approval of the prospectus by the CMVM without which said offer may not be carried out.
Other Disclosure Requirements for Issuers of Securities Admitted to Trading on Regulated Market
1 - In addition to those mentioned in Article 245/1/a) and /b) of the Securities Code, the annual reports and financial statements should include the following documents:
a) Opinion from the supervisory board, containing the statement envisaged in Article 245/1/c) of the Securities Code;
b) A list of the holders of qualifying holdings, including the number of shares held and percentage of voting rights, calculated according to Article 20 of the Securities Code.
2 - The board of directors of the issuer should immediately disclose the explanatory note of any changes in the accounting records released.
3 – The information referred to in Article 249/2/g) should specify the resolution relating to the investment of earnings.
1 - In addition to the information and documents listed in Article 246/1 of the Securities Code, the half-yearly statements should include the following:
a) The number of securities issued by the company and its affiliates or by companies owned by members of the board, and all acquisitions, encumbrances or assignments during the relevant period;
b) The minimum requirements envisaged in IAS 34 - Interim Financial Reporting, which should be drawn up according to this standard for financial statements prepared in accordance with the International Accounting Standards;
c) A list of the holders of qualifying holdings, including the number of shares held and percentage of voting rights, calculated according to Article 20 of the Securities Code.
2 - If the first financial year of the issuers that opt for a financial year different from the calendar year is greater than 12 months, a half-yearly statement for the second half of the year should also be published with the provisions of the preceding paragraphs being applicable mutatis mutandis.
Quarterly and Interim Statements
1 - Until two months after the end of the 1st, 3rd and 5th Quarter, if applicable, of each financial year of reporting, issuers referred to in Article 246-A/1 should disclose information with the minimum details envisaged in IAS 34.
2 - Issuers referred to in Article 246-A/2 should disclose interim statements with the minimum content envisaged in the Appendix to this Regulation.
3 –The information referred to in the preceding paragraphs is only disclosed in the consolidated form, unless the information on an individual basis contains relevant information.
Information on the Acquisition and Disposal of Own Shares
Notification and Disclosure
1 - Issuers, subject to Portuguese law, of shares or other securities that confer subscription, acquisition or disposal rights and are admitted to trading in a regulated market located or operating in Portugal or exclusively admitted to trading on a regulated market situated or operating in another EU Member State should notify the CMVM of any acquisitions and disposals of such securities.
2 - Issuers referred to in the preceding paragraph should disclose the following:
a) The final result of the transactions that reach, exceed or fall below 1% of the share capital or successive multiples;
b) All the acquisitions and disposals, regardless of the net balance of same, carried out in the same session of the regulated market where same reaches or exceeds 5% of the volume traded in said session.
3 - The duties envisaged in the preceding paragraphs are complied with within three working days from the date of the transaction.
4 - The provisions of paragraph 2 shall not apply to transactions in own securities held in execution of liquidity agreement concluded in accordance with market practice declared acceptable by the CMVM, which are reported to the CMVM by the end of each quarter.
Notification and Disclosure by Controlling Company
Pursuant to the preceding Article, the controlling company shall report and disclose the acquisitions or disposals of securities issued by the controlling company itself and executed by a company controlled by it.
Content of Notification and Disclosure
The notice referred to Article 11/1 and the disclosure envisaged in Article 11/2/b) should include the following information for each transaction:
a) Details of the company required to notify and of any controlled company as referred to in the previous Article, if applicable;
b) Details of securities acquired or disposed of;
c) Completion date of the acquisition or disposal;
d) Market where the transaction took place;
e) Type of business;
f) Number of securities traded;
g) Unit price of transactions;
h) Trading time, if carried out on the market;
i) Number of own securities held.
Transactions carried out by Management of Issuers and Persons Closely Related
Notification and Disclosure of Management Transactions
1 – The notification envisaged in Article 248-B of the Securities Code is only payable when the value of the transactions in question reaches EUR 5,000. This amount is calculated on the basis of transactions carried out since the date of the last disclosure.
2 - To determine the value of transactions carried out free of charge the price of the security in question on a regulated market at the time of the transaction should be considered or, if the securityis not admitted to trading on a regulated market, the fair value.
3 – The five working days set out in Article 248-B/1 of the Securities Code shall be from the transaction, either singly or jointly with transactions since the date of the last disclosure, that reaches or exceeds the amount referred to in paragraph 1.
4 - Within five working days of the appointment or after the admission of securities to trading on a regulated market, the management of the issuers of shares admitted to trading on a regulated market or a controlling company shall send to the issuers the number of shares held of that company and also the percentage of voting rights that pursuant to Article 20 of the Securities Code are attributable to them.
5 – The issuers shall immediately notify the CMVM of the information received pursuant to the preceding paragraph.
6 - By the end of the month following the end of each half-year, the directors of issuers of shares admitted to trading on a regulated market or a controlling company and people closely related therewith, shall send to the issuers a list of all transactions carried out during the six month period relating to the shares of the issuer or the financial instruments linked thereto.
7 – Together with the annual and half-yearly financial statements, issuers should disclose the information received pursuant to the preceding paragraph.
8 - When relating to issuers of shares, the issuer shall also be notified of the information envisaged in paragraph 1 within five working days and said issuer shall immediately disclose the information on the CMVM's Information Disclosure System.
1 - The issuers of securities admitted to trading on a regulated market shall establish and continuously update a list of the management referred to in Article 248-B of the Securities Code.
2 - Article 248/7 of the Securities Code applies to the list envisaged in the previous paragraph.
3 - The issuers of securities admitted to trading on a regulated market shall report to the management referred to in Article 248-B of the Securities Code, in writing, to be included in the list referred to in paragraph 1, of the corresponding duties and excluded from the list, when applicable.Said duties include the duty to identify the closely related people and to notify said persons about the reporting of transactions.
The following are repealed:
a) CMVM Regulation No. 4/2004, of 11 June;
b) Article 3 of CMVM Regulation No. 7/2001, of 12 December;
c) Article 3 of CMVM Regulation No. 1/2007, of 21 November.
Entry into force
1 – This Regulation shall come into force on publication.
2 – The disclosure requirements envisaged in Article 10 only applies to the financial year that commences on 1 January 2009.
2 October 2008 – Chairman of the Executive Board, Carlos Tavares. – Vice-Chairman of the Executive Board, Amadeu Ferreira.