The CMVM statutes
Decree-Law No. 5/2015
(approved by Decree-Law No. 5/2015. Includes amendments introduced by Law No. 148/2015 of 9 September)
Name, Nature, Framework and Head-office
Name and Nature
1 — The Portuguese Securities Market Commission (Comissão do Mercado de Valores Mobiliários) hereinafter referred to as the CMVM, is a legal entity governed by public law and endowed both with administrative and financial independence and its own assets.
2 — The CMVM carries out its duties independently and, for this purpose, deploys the following:
a) Management, administrative, financial and asset independence;
b) Organisational, functional and technical independence;
c) The assets and resources attributed to bodies, departments, personnel and held in reserve;
d) Powers for regulating, rule-making, supervision, oversight and sanctioning infractions.
3 — The CMVM is part of the European System of Financial Supervisors (ESFS) and the National Council of Financial Supervisors.
4 — Without infringing on its own independence, the CMVM is responsible to the government finance minister.
5 — The Management Board members may not, whilst carrying out their duties and as per the law, receive or request guidance or resolutions from the government or from any other entity, and may not be removed from office apart from under the circumstances expressly provided for in these statutes.
The CMVM is governed by the following rules:
a) The applicable EU and international law, competition law and the legislation for regulators;
b) The current statutes and the Securities Code, approved by Decree-Law No. 486/99 of 13 November, defining their statute and complementarily as regards its financial and asset management, provide the legal framework applicable to public undertakings;
c) Decree-Law No. 228/2000 of 23 September, amended by Decree-Laws Nos. 211-A/2008 of 3 November and 143/2013 of 18 October, regulates the National Council of Financial Supervisors;
d) Regulation (EU) No. 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board;
e) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority);
f) Internal regulations.
Head-office, Delegations and Geographical Scope
1 — The CMVM is equipped with a head-office in Lisbon and a delegation in Oporto and may establish additional delegations or other forms of representation whenever the Management Board so sees fit in order to perform its duties.
2 — The CMVM fulfils its responsibilities nationally and via international cooperation in accordance with the Securities Code.
Mission, Duties and Powers
Mission and Duties
1 — The CMVM regulates and supervises financial instruments markets as well as the entities that act therein in accordance with the Securities Code and the relevant complementary legislation.
2 — The CMVM duties are to:
a) Regulate and supervise markets in financial instruments by promoting investor protection;
b) Ensure financial market stability by contributing towards the identification and prevention of systemic risk;
c) Contribute towards financial instrument market development;
d) Provide information and support to retail investors;
e) To assist the government and the relevant member responsible for its finances, on the request of the former or via its own initiative, in the setting of policies for financial instruments, markets and the relevant entities involved therein;
f) Carry out any other duties handed down by the law.
3 — The CMVM performs its duties within the scope of the European System of Financial Supervisors and the National Council of Financial Supervisors and their respective bodies in accordance with the provisions of these statutes.
4 — In pursuing its mission and whenever duly required or appropriate, the CMVM establishes forms of cooperation and association with:
a) Other regulatory entities, specifically Banco de Portugal (Central Bank), the Instituto de Seguros de Portugal (Insurance and Pension Funds Supervisory Authority) and the Autoridade da Concorrência (Competition Authority);
b) Other state authorities that exercise supervisory and regulatory duties over financial instruments and the financial system in general;
c) Other international organisations and relevant members of the financial sector;
d) Relevant associations, specifically, investor associations, the General Directorate for the Consumer, for the disclosure and application of the rights and interests of retail investors within the supervised sector;
e) Other entities governed by public or private law.
5 — The CMVM may oblige any entity, whether public or private, to submit the information necessary for the strict fulfilment of its duties.
6 — Fully respecting the principle of legality in the field of public administration and unless expressly provided for otherwise, the legal jurisdiction of the CMVM spans the entitlements to all such rights, subject to all the duties and the practices of all legal acts required for performing its duties.
7 — The CMVM may not engage in activities or apply its powers beyond the scope of its duties or devote its resources to purposes other than those they have been committed to.
8 — The CMVM may neither launch nor participate in the inception of private entities for financial gain nor acquire interests in such entities.
9 — The CMVM cannot guarantee the fulfilment of duties by other public or private legal entities to third parties.
In pursuing its duties regarding contributing towards the development of financial markets, the CMVM shall, inter alia:
a) Disclose and promote awareness of both the markets and their applicable rules and regulations;
b) Develop, encourage and sponsor, whether itself or in collaboration with other entities, research papers, surveys, publications, training activities and other similar initiatives.
Powers of the CMVM
1 — The CMVM powers detailed in Article 1(2) (d) are provided for under the Securities Code, the current statutes and the other complementary and applicable legislation.
2 — Prior to adopting or amending any regulations containing external efficacy standards, the CMVM shall promote consultation papers for public discussion and with the intervention of the government, entities participating in the activities targeted and their respective associations, investor associations and the general public.
3 — For the purposes of the preceding paragraph, the CMVM shall disclose the relevant draft on its website with stakeholders then submitting their comments and suggestions.
4 —The results of consultation papers shall be presented in reports published on the CMVM website along with the reasoning for the options subsequently taken by the CMVM and referencing, whenever relevant, the comments and suggestions made during the public consultation process.
5 — Without infringing on the penalties provided for by law, the CMVM may adopt the precautionary and similar measures necessary to preventing or halting actions contrary to the provisions stipulated in the legislation for which it oversees and monitors compliance.
6 — Without prejudice to the provisions of Decree Law No. 156/2005 of 15 September, amended by Decree-Laws Nos. 371/200, dated November 6, 118/2009 of 19 May, 317/2009 of 30 October and 242/2012 of 7 November, the CMVM shall contribute to resolving any eventual conflicts between entities subject to its supervision, or between the latter and investors, including:
a) Disclose statistical information both on investor complaints and on any results of CMVM interventions and may, whenever so appropriate, tailor that information by each respective entity receiving complaints;
b) Upon request by the interested parties, undertake the handling of complaints, either in accordance with the following paragraph or through mediation, and according to the provisions stipulated by the Securities Code;
c) Following complaint handling, issue recommendations to the entities subject to its supervision or, should these prove ineffective, determine the adoption of measures necessary for fair compensation of investor rights.
7 — The CMVM organises this complaint handling service free of any charge for the resolution of disputes between retail investors, on the one hand, and entities subject to its supervision, on the other hand.
8 — The service identified in the preceding paragraph spans the full analysis of the complaint submitted and the assessment of compliance with the rules applicable to the specific case according to simple and expeditious procedural terms.
9 — The CMVM regulates the procedures for handling complaints and conflict resolution.
Composition, Duties and Functioning
The CMVM comprises of the following management structures:
a) Management Board;
b) Supervisory Commission;
c) Consultative/Advisory Board;
d) Ethics Commission.
e) The General Board of Audit Supervision.
1 — For the purpose of legal acts, the CMVM is represented by the Chair of the Management Board, two of its members or by agents specifically designated by the Chair and/or by two board members.
2 — CMVM notifications take effective when brought to the attention of any board member or an employee designated by the former for said purpose.
The Management Board is the collegiate body responsible for defining the CMVM's role and running its activities.
Composition and Appointment of Board Members
1 — The Management Board is comprised of a Chair, Vice-chair and three board members.
2 — Board members are chosen from among individuals with the renowned propriety, technical competence, fitness, professional experience and training appropriate to exercising their duties. They are appointed by the Minister of Finance.
3 — Board members shall, as a whole, hold appropriate knowledge about relevant matters for the purposes of supervising the audit activity.
4 — Board members are appointed in accordance with Article 17(3) to (8) of the regulatory framework law.
Management Board member mandates are for six-year periods.
Management Board Responsibilities
The Management Board exercises the powers necessary to carrying out the CMVM's duties and, in particular, acts to:
a) Define the general CMVM policy and supervise the relevant activities;
b) Draw up plans and budgets for annual submission to parliament and the government and ensure their implementation;
c) Draw up the CMVM activity report for each financial year, including the situation prevailing in financial instrument markets and their outlook, annually presenting this to the Ministry of Finance before 30 June;
d) Draw up a management report and accounts for each financial year and submit them by 31 March of the following year, together with the Supervisory Commission opinion, for the approval of the Minister of Finance;
e) Ensure the necessary conditions are in effect for financial and budgetary control by the competent legal entities;
f) Assign one or more areas of CMVM responsibility as per the Chair's proposal;
g) Appoint directors or similar under secondment as per the internal regulations;
h) Organise the CMVM departments and manage the human resources through exercising the powers of leadership, management and discipline over members of staff and implementing employment practices as prescribed by the general law and the current statutes;
i) Appoint CMVM representatives to other entities, as well as representatives of the regulatory authority, inside and outside of legal jurisdictions, including powers of delegation;
j) Manage the CMVM financial and asset resources;
k) Monitor and thoroughly assess CMVM activities, especially whether the different departments are effectively deploying the means at their disposal and achieving the intended results;
l) Decide on the acquisition, disposal, leasing or rental of assets and property for the installation, equipment and functioning of the CMVM;
m) Resolve on the acquisition, disposal and leasing of real estate for the same purposes, with prior approval of the Minister of Finance;
n) Hire services and authorise expenditure;
o) Collect and manage revenues;
p) Accept donations, bequests or legacy inventory benefits, with the prior approval of the Minister of Finance;
q) Decide on setting up, relocating and/or closing of branches/delegations and other forms of representation;
r) Approve the regulations and other norms as conferred on the CMVM by law;
s) Approve general recommendations for the entities subject to its supervision and issue general legal opinions regarding the issues posed;
t) Prosecute or practice similar acts that impute charges to defendants, impose fines and additional penalties as a result of infractions proceedings and their relevant subsequent collection;
u) Determine the opening of preliminary investigations into crimes against the market and supervise them through to their closure;
v) On parliamentary request, issue opinions on draft legislation within the scope of its duties as well as providing information and clarification on the relevant respective activities;
w) To assist the government through rendering technical support, drawing up opinions, research papers, information/proposals and draft legislation;
x) Ensure CMVM representation and, on government request, represent the state in national and international fora for liaising with national and international counterparts or entities of relevance to the respective field of activity;
y) Carry out other CMVM supervisory actions defined by law and implement other management actions resulting from applying the law and those statutes necessary for the proper functioning of departments;
z) Resolve any other additional matters assigned by law to the CMVM.
Duties of the Chair
1 — The Chair of the Management Board:
a) Represents the CMVM;
b) Convenes the Management Board, chairs its meetings, guides its works and ensures compliance with the relevant resolutions:
c) Proposes convening notices and the agendas of Advisory Board meetings;
d) Requests opinions from the Supervisory Board and the Advisory Board;
e) Resolves and performs all acts that, while subject to Management Board resolution may not, due to their nature and urgency, await the Board's next meeting;
f) Ensures liaison with the parliament, the government and other public administrations and public bodies;
g) Exercises the duties duly assigned by the Management Board;
h) Performs other duties as set out in these statutes.
2 - The resolutions and acts referred to in (e) above shall be subject to the approval of the Board at the subsequent meeting.
3 — The Chair is replaced, either whenever absent or in the case of impediment, by the Vice-Chair or the Board Member appointed by the Chair, and in the lack of the latter, by the Board Member who has held office the longest.
4 — Without prejudice to Article 14(4) of the Administrative Procedure Code, the Chair or his/her substitute may veto resolutions of the Management Board that run counter either to the law or to the public interest and that said veto shall be subject to a substantiated voting statement and drawn up in the minutes.
5 — As provided for in the preceding paragraph, such resolutions may be adopted only after a new decision-making procedure, including hearing whichever entities the Chair or his/her substitute deems appropriate.
6 —Without prejudice to paragraph 3, the Management Board Vice-chair is responsible for assisting the Chair in performing all relevant duties and in carrying out any duties that may be delegated as per the following article.
Delegation of Duties
1 — The Management Board may delegate either to one or more of its board members or to directors or holders of equivalent positions, in accordance with CMVM internal regulations, those duties mentioned in Article 12 (h), (j), (n), (o) and (s) and the imposition of sanctions within the scope of warning procedures and summary proceedings.
2 — The acts referred to in Article 12(y) may also be delegated by the Management Board to one or more of its board members or to directors or holders of equivalent positions except in the acts detailed below:
a) Registration for carrying out investment consultancy activities;
b) Prior registration for intermediation activities;
c) Registration of market and multilateral trading system management entities and the respective markets and systems managed by said entities as well as the registration of management entities of centralised securities systems, clearing houses, settlement systems and pledge funds;
d) Registration of takeover bids and any pertaining authorisations;
e) Registration of the rules identified in Article 372 of the Securities Code;
f) Registration or approval of contractual clauses for regulated futures market transactions and stability contracts;
g) Refusal or rejection of the acts mentioned in the previous paragraphs;
h) Signing of cooperation agreements;
i) Acts listed in Article 361(2) (e) and (f) of the Securities Code;
j) Acts listed in paragraph 3 (b), (d) and (e) of the subsequent Article.
3 — The allocation of management responsibilities to Board Members or directors or holders of equivalent positions consists of delegating the necessary duties for such management.
4 - The distribution of functions does not remove the obligation incumbent on all board members of being aware and supervising all CMVM issues and proposing measures concerning any of these issues.
5 - Without prejudice to Article 6, the Management Board Chair may delegate to the Vice-Chair and board members the duties laid down in Article 1 (a), (c), (d), (f), (g) & (h) and in each case establishing the relevant limits and conditions.
6 – Such delegation of duties shall be described in the minutes of the meeting wherein the relevant decision is taken and published in the 2nd series of the Official Gazette and on the CMVM website.
Meetings and Resolutions
1 — The Management Board ordinarily meets at least weekly as per the internal regulation, and extraordinarily whenever the Chair convenes either on his/her own request or at the request of any board member.
2 — The Management Board passes valid resolutions following the participation of the majority of its members.
3 — Resolutions are passed by the majority vote of participating members, including the mandatory vote of the Chair, whenever the purpose is that of:
a) Approval of CMVM regulations, recommendations or generic opinions;
b) Approval of draft legislation to be submitted to the Government or administrative rules to be submitted to the Minister of Finance;
c) Issues arising from Article 12 (a), (b), (c) and (l);
d) Opening, suspending or closing regulated markets, multilateral trading systems, central securities depositories and settlement systems;
e) Granting or withdrawal of the authorisation for the management entities of the systems mentioned in the previous paragraph.
4 — The Management Board Chair hold the casting vote in the event of a tie.
5 — Abstentions are not counted as votes.
6 — Management Board meetings are recorded in minutes that are then signed off by members and any members in disagreement with the contents of the resolutions may register their relevant voting statements in the meeting minutes.
Management Board Member Statutes
1 — The framework defined in the Securities Code, the currents statutes and the framework law of regulators applies to the Management Board members.
2 — The board members carry out their duties on an exclusive basis and may not:
a) Hold office in sovereign bodies, autonomous regions or local government entities or exercise any other public duty or professional activity apart from any teaching or research activities provided said are not paid for and have been communicated to the Management Board in advance;
b) Maintain any relationship or contractual relationship, either directly or indirectly, paid or unpaid, with companies, groups of companies or other entities operating within the scope of regulatory body activities or hold any shares or interests in companies, groups of companies or other entities operating under the auspices of CMVM activities;
c) Maintain, either directly or indirectly, any relationship or contractual relationship, whether paid or unpaid, with any other entities engaged in activities that may generate conflicts of interest with their duties and powers;
d) Carry out, whether directly or via an intermediary, transactions in financial instruments except in the case of public funds, savings retirement funds or exercising the rights attached to previously purchased financial instruments or financial products.
3 — Board members that hold financial instruments at the time of their appointment are either to dispose of them prior to taking up their duties or to make written statements declaring their existence to the Management Board and may thereafter only alienate them following permission from the Minister of Finance.
4 — Following the end of their mandates and throughout a two-year period, board members may not establish any relationship or contractual relationship with companies, groups of companies or other entities operating under the auspices of CMVM activities and are entitled to compensation equivalent to one-half of their monthly salary throughout this period.
5 — In everything not specifically regulated by the current statutes, Management Board members are subject to the regime of incompatibilities and impediments in effect for senior public servants.
6 — Board member monthly salaries and monthly allowances for representation expenses are established by the CMVM Remuneration Committee.
7 — Without prejudice to Article 25 of the regulatory authority framework law on remunerations, the CMVM Remuneration Committee shall take the following criteria into consideration:
a) The size, complexity, requirements and responsibilities inherent to the duties assumed;
b) The impact that the charging system, tariffs and other contributions that the CMVM establishes and earns bears on the financial instrument markets and their products;
c) The usual market practices prevailing in the financial sector, particularly for the holders of other financial supervisory authorities;
d) The economic environment, the need for national adjustment and remuneration contention and adopting the Prime Minister's monthly salary as a benchmark.
8 — Management Board members are subject to the social security scheme, except when under secondment and, as such, that of their place of origin.
Organisation of Services
1 - The CMVM shall deploy the means and resources necessary to fulfilling its duties.
2 - Via internal regulation, the Management Board defines the CMVM's organic structure, the duties and powers of the departments therein, the relevant personnel maps, the general rules for compliance with when undertaking the activities attributed and every aspect required for the appropriate functioning of the CMVM.
Termination of Service
1 — Management Board member mandates terminate due to:
a) The mandate's expiry date;
b) Either permanent disability or that with a duration expected to exceed the mandate termination date or the respective appointment duration;
c) Ensuing unsuitability of members;
d) Resignation via a written statement submitted to the Minister of Finance;
e) Trial and conviction for crimes of specific intent that challenge the propriety required for the carrying out of these duties;
f) The serving of a prison sentence;
g) Dissolution of the Management Board or dismissal of its members in accordance with paragraphs 2 and 3;
h) Abolition of the CMVM.
2 — The dissolution of the Management Board or the dismissal of any member may only take place via resolution by the Council of Ministers based on justifiable cause.
3 — For the purposes of the previous paragraph, serious misconduct is a due reason for dismissal and may stem from either individual or collective liability, duly verified following an investigation by an independent government entity subsequent to an Advisory Board opinion and/or hearings by the relevant parliamentary committee, and consisting of:
a) Serious or repeated disregard for legal rules, particularly of the current statutes and CMVM regulations and guidelines, and/or non-compliance with the transparency and disclosure duties in effect for CMVM activities;
b) Non-compliance with the fulfilment of duties on an exclusive basis or serious or repeated disregard for discretion and professional secrecy duties:
c) Substantial and unjustified non-compliance with the CMVM's activity plan or budget.
4 — Board members remain in office until their actual replacement takes office in regular situations of mandates terminating and resignations.
5 — The mandate term of each Management Board member is independent of the mandate term of the remaining members.
The Supervisory Commission is the entity responsible for legal issues, operational and sound CMVM financial and asset management and consultation with the relevant Management Board for these fields.
Composition, Appointment, Mandate and Statute
1 —The Supervisory Commission is comprised of a Chair and two Board Members, appointed by the Minister of Finance. One of the two board members is a statutory auditor.
2 — The statutory auditor is appointed mandatorily by order of the Minister of Finance from among the statutory auditors or the audit firms registered with the CMVM.
3 — The Supervisory Commission members are appointed for four-year non-renewable mandates.
4 — The Chair and Supervisory Commission members are entitled to a monthly salary, which is paid twelve times annually, equivalent to one-quarter of the monthly salary set for the Chair and Board Members respectively.
5 — Article 16(2) (b), (c), (d) and (3) apply to Supervisory Commission members who may not enter into employment with other government entities.
Supervisory Commission Duties
1 — The Supervisory Commission duties are:
a) Regularly monitoring and controlling compliance with the applicable laws and regulations, budget execution and the economic, financial, asset and accounting positions;
b) Advising on the budget plan and its relevant revisions and amendments including on the business plan from a budgetary coverage perspective;
c) Issuing opinions on reports and accounts, including on the legal certification of the accounts;
d) Issuing opinions on the acquisition, leasing, disposal of and encumbrance of real estate;
e) Issuing opinions on the acceptance of donations, bequests or legacy inventory benefit;
f) Issuing opinions on the CMVM taking out loans as per Article 32(4);
g) Maintaining the Management Board informed as to the outcomes of reviews and examinations;
h) Drawing up its supervisory action reports, including an overall annual report;
i) Proposing external audits to the Management Board, whenever deemed necessary or adequate:
j) Ruling on matters submitted by the Management Board, the Court of Auditors or other public bodies responsible for the inspection and auditing of state services;
k) Reporting any irregularities to the competent authorities.
2 — The Supervisory Commission may:
a) Request the Management Board and the CMVM departments provide any information, clarifications and the data necessary for the proper completion of its duties and may request the presence of department heads to provide any such clarifications deemed necessary:
b) Hold meetings with the Management Board to assess issues within the scope of its powers, whenever their nature or importance warrants such events;
c) Take or propose any additional measures deemed essential;
3 — The deadline for drawing up those opinions mentioned in paragraph 1 is 30 days counting from the date of receipt of the relevant documents except for imperative situations.
1 — The Supervisory Commission meets ordinarily at least once a month and extraordinarily whenever convened by the respective Chair, either on his/her own initiative or on the initiative of any Committee member.
2 — There is are no abstention from voting.
3 — The Supervisory Commission meetings are recorded in minutes signed by participating members. Members dissenting with the resolutions passed and the relevant voting statements are entered into the meeting minutes.
1 - The Advisory Board is chaired by a person appointed by the Minister of Finance following a proposal from the Chair of the CMVM's Management Board and is composed of:
a) A Banco de Portugal Management Board member (the Portuguese Central Bank);
b) An ASF Management Board member (Portuguese Insurance and Pension Funds Supervisory Authority);
c) A Portuguese Treasury and Debt Management Agency board member;
d) A director of a market management company either headquartered or operating in Portugal;
e) A director of the settlement system or the securities centralized system management company;
f) A director of a central counterpart either headquartered or operating in Portugal;
g) Two representatives of securities issuers admitted to regulated market trading;
h) Three representatives of investors with at least one retail investor representative;
i) Two representatives of different financial intermediary categories;
j) A representative of the multilateral trading system entity managing;
k) A representative of the Statutory Auditors Bar Association.
2 - The Minister of Finance also appoints as members of the Advisory Board, following a proposal from the Management Board Chair, up to five independent individuals of recognized merit in the field of financial markets.
3 - The Advisory Board Chair may invite leading members or representatives of institutions to attend meetings of the advisory board, while without any voting rights, and take their contributions into consideration as regards the matters under appreciation at each meeting.
4 - The Advisory Board Chair shall convene such meetings and set the agenda following a proposal from the Chair of the Management Board.
5 - The Advisory Board shall be deemed constituted when at least two thirds of the persons mentioned in paragraphs 1 and 2 have been appointed.
6 – Management Board members may attend Advisory Board meetings but do not hold any voting rights.
1 - The members of the Advisory Board referred to in paragraph 1 above are appointed by the entities they represent or, in the cases referred to in paragraph 1 (d) to (h), by their respective associations.
2 - Should there be no agreement as to the appointment of the persons referred to in paragraph 1 (d) to (h), the appointment shall be made by the Chair of the Advisory Board, following a proposal from the Board Chair, from among those indicated by each entity.
Each Advisory Board member serves a four-year term and may be replaced before the end of that term of office by the entity making the appointment.
The Advisory Board is an advisory body to the Management Board on matters within the remit of the CMVM, and, inter alia, responsible for:
a) Issuing opinions on matters submitted by the Management Board;
b) Submitting, on its own initiative, recommendations and suggestions, within the scope of CMVM competences, to the Management Board.
Meetings and Resolutions
1 - The advisory board normally meets at least once a year and extraordinarily whenever convened by its Chair, on his/her own initiative, following a proposal from the Management Board Chair or upon the request of one-quarter of its members.
2 - The Advisory Board shall decide by a simple majority of the votes of participating members while requiring the participation of at least one-half of all members for such decisions to be valid.
3 – For each Advisory Board meeting, a minute shall be drawn up and signed by the Chair and secretary.
1 - The Advisory Board members may be remunerated according to attendance fees set by an internal regulation.
2 - The fees set in accordance with the internal regulation may not exceed the limit of two allowances corresponding to the national daily expenditure allowance allocated by the CMVM.
Competences, Composition and Operation
1 - The Ethics Commission is the body that issues reasoned statements on matters of conflicts of interest, especially regarding:
a) The suspension, for limited periods of time, of employment contractual links established prior to engaging in CMVM activities;
b) Higher education lecturing and research institution activities in conjunction with ongoing responsibilities at the CMVM;
c) Any financial instrument transactions or the conclusion, amendment or termination of any financial intermediation contract;
d) The establishment of any bond with service providers or contractual relationships with other entities particularly as regards the provision of legal, economic or financial services;
e) Following the cessation of mandate or functions, establishing any bond or contractual relationship, remunerated or otherwise, with other entities engaging in activities potentially conflicting with the formerly held duties and responsibilities.
2 - The Ethics Commission is chaired by a person appointed by the Minister of Finance, by the Chair of the Advisory Board and by a board member appointed by the latter.
3 - The Ethics Commission meets at the request of the Management Board or the person concerned in the provisions specified in paragraph 1.
4 - The Ethics Commission decides unanimously.
5 - For each Ethics Commission meeting, a minute is drawn up and signed by all its members.
6 - Membership of the Ethics Commission is a non-remunerated position.
Economic, Financial and Asset Management
The Budgetary, Financial, Asset and Accounting Framework
1 - CMVM financial and asset management shall be subject to the provisions stipulated by the legal framework for regulatory authorities, these by-laws and, additionally, the legal system applicable to public undertakings.
2 – The CMVM has, as regards its financial and asset management, the autonomy provided for in the legal framework for regulatory authorities and, as regards its budget, in these statutes.
3 – The CMVM's own property consist of the assets, rights and economic content obligations acquired by the CMVM itself.
4 - CMVM asset and financial management is governed according to the principles of private law, except when relating to assets allocated by the state in which case, and according to the circumstances, the legal frameworks for public real estate, transferable state assets and state vehicle fleets applies.
5 - Notwithstanding the provisions of paragraphs 3 and 4 of Article 32, the general rules for the financial activities of autonomous funds and services, particularly including the rules on transition and recourse to management balances, on the blocking of funds and the duodecimal system provided for in the budgetary law and public accounting legislation, does not apply to the CMVM.
6 – The reporting of CMVM accounts takes place in accordance with the Portuguese Accounting Standards.
7 - Accountability shall be primarily governed by the provisions stipulated by the Organisational Law and Court of Auditor Procedures and their respective regulations.
8 - The State Treasury system, and especially the treasury unit principles and rules, apply to the CMVM.
9 - The CMVM shall annually prepare and update an inventory of its fixed assets.
10 – Net CMVM income is carried forward to the following year and may be applied to the benefit of investors and the financial sector, including:
a) Research, training and financial literacy programs;
b) Investment in IT systems to raise the efficiency standards of the CMVM supervision of markets and their participants;
c) Funding systems for the out-of-court settlement of disputes among investors and supervised entities;
d) Establishing or reinforcing reserves in favour of the CMVM financial position and against the risks of its activities.
1 - Fees or charges are payable in exchange for acts carried out by the CMVM and the services it thereby provides.
2 - The incidence, subjective and objective, the amount or the rate, the frequency and, where appropriate, the exemptions, total or partial, the periods of application and the maximum and minimum limits for the collection of fees payable to the CMVM are set, following the hearing of the CMVM opinion, by an ordinance issued by the Minister of Finance.
3 - Tariffs or other amounts due to the CMVM resulting from acts and registration services, approvals or authorisations, as well as utilisation of the information disclosure system provided for in Article 367 of the Securities Code, are established by CMVM Regulation, which outlines the incidence, subjective and objective, the amount or the rate, the frequency and, where appropriate, the exemptions, total or partial, the periods of application and the maximum and minimum limits of collection.
4 – Following proposal by the CMVM, the Minister of Finance may issue an ordinance that establishes reductions in the amounts or rates, as well as in the prevailing maximum and minimum fee collection limits, that comes into effect for a six-month period.
5 - The CMVM shall establish regulations for the methods and terms of payment and the collection of all due taxes and tariffs.
6 - The coercive collection of contributions, fees and tariffs, with their payment legally stipulated, adopts the process applied to tax enforcement, regulated by the Code of Taxation Procedures and Processes, thus executed by the relevant departments of taxation law enforcement and processed as state credits.
7 - The coercive collection of credits provided for in the preceding paragraph may be undertaken by the Tax and Customs Authority, under the terms and conditions to be described by the protocol signed for such purpose between this service and the CMVM.
8 - For the purposes of paragraph 6, the certificate with an enforceable value, issued in accordance with the provisions of the Code of Tax Procedure and Processes, shall suffice for enforcement.
1 - Notwithstanding the provisions of paragraphs 3 and 4, the CMVM is funded exclusively by its own revenues.
2 - CMVM own revenues, in addition to any other sources of income established by law, are as follows:
a) The total fees and amounts owed to the CMVM under the article above;
b) The costs of administrative infraction proceedings;
c) Revenues from mandatory publications or any other publications made in the appropriate bulletin;
d) Proceeds from the sale of any research, works or other publications under its auspices;
e) Income from the sale or transfer, on any account, of rights to its assets;
f) Revenues resulting from investing its financial resources;
g) Reimbursements, allowances and donations.
3 - Each year's management balance is carried forward into the following year apart from when resulting from usage of public assets or originating in transfers from the State Budget under which circumstances, they may revert to the latter.
4 – For any amounts resulting from usage of public assets or that depend on State Budget allocations, the budgetary and financial framework of autonomous funds and services shall apply, particularly in terms of authorisation for the expenditure, transition and application of net profits and blocking of funds.
5 – The CMVM may not resort to credit, except under exceptional circumstances and following prior authorisation from the Minister of Finance.
Expenditures incurred by the CMVM are those arising from the costs incurred in the pursuit of its duties.
Performance Benchmark System
1 – The CMVM shall deploy a coherent system of performance benchmarks, which reflects all the activities pursued and the results obtained.
2 - This system shall include benchmarks of efficiency, effectiveness and quality.
3 - The Supervisory Commission shall assess the quality of the performance benchmarking systems and shall annually assess the results obtained by the CMVM according to the resources available with the findings resulting reported to the Minister of Finance.
1 - CMVM employees are bound by an individual employment contract.
2 – The CMVM may be a party to means of collective labour regulation.
1 - The hiring, compensation and benefits of CMVM personnel as well as the appointment of management positions or equivalent and the cessation of their functions, the setting of allowances, supplements, benefits and performance incentives and social security entitlements, including pension funds, are a Management Board responsibility that acts in accordance with the internal regulations.
2 - CMVM employees shall not engage in any other occupation or provide any other service which may conflict with their duties at the CMVM except for teaching at higher education institutions or research, when the Management Board so authorises.
3 - Service providers may not maintain any bond or contractual relationship with entities whose activity may lead to conflicts of interests, especially as regards the provision of services in the legal and economic-financial fields and with the Management Board retaining responsibility for assessing and safeguarding the existence of such conflicts.
4 - CMVM employees may not, either on their own behalf or on that of others, directly or indirectly, undertake any financial instrument transactions or enter into, amend or terminate any financial intermediation agreement, except in the following cases:
a) When such operations involve public funds, retirement savings and retirement-education savings or money-market funds; or
b) Following written Management Board authorisation.
5 - The authorisation referred to in subparagraph (b) of the previous paragraph shall be granted only when the operations or the conclusion, amendment or termination of the contracts in question do not affect normal market operations, do not result from usage of the confidential information that employees access within the course of exercising their duties and, in case of sales, more than six months have already elapsed from the date of purchase of the respective financial instrument(s) for sale.
6 - In situations relating to the cessation of management or similar positions, and for a two-year period, the respective holders may not establish any bond or contractual relationship with the companies, groups of companies or other entities operating within the scope of CMVM activities and, in the event of default, liable to having to return all net remunerations earned for up to a maximum three year period and for such purpose applying the updated coefficient resulting from the corresponding annual mean variation rates in the consumer price index as calculated by the National Institute of Statistics, I.P.
7 - Excluded from the provisions of the preceding paragraph are situations involving terminating of management functions or similar due to expiry of the respective employment contract, the termination of secondment upon returning to the place of origin or when the termination of management or similar functions takes place on the initiative of the CMVM.
8 – The CMVM shall issue an internal regulation on the rules agreed for the following matters:
a) The organisation of work, its rules and the preventing of conflicts of interest;
b) Staff statutes, including the duration of secondments, performance evaluations and merit and disciplinary matters;
c) The career structure;
d) The staff salary status considers the scope, complexity, requirements and responsibilities inherent to the functions and specific nature of the functions and responsibilities entrusted to the CMVM as a member of the National Council of Financial Supervisors;
e) The social protection scheme applicable to the staff.
9 - Without prejudice to the provisions in the Securities Code, the CMVM also establishes rules on the duty of confidentiality in its internal regulations.
10 - The recruitment of employees is subject to the following:
a) Prior public tender, announced in particular on the CMVM website and the Public Employment Market;
b) A tender-type procedure which, in any case, shall ensure the application of methods and objectives and detailed criteria for assessment and selection and for explaining the reasoning behind the decision taken;
c) An assessment and selection procedure that ensures compliance with the principles of equal terms and opportunities among applicants, impartiality, and the provision of complete and clear information to applicants throughout the course of the procedure and its completion.
11 – The CMVM shall ensure the continuous and specialised training of its employees so that their performance standards are recognised and accepted in the course of their duties and correspondingly meeting the applicable national and international obligations in this respect.
12 - The Management Board shall approve the code of conduct applicable to its employees within the internal regulation, thus in keeping with the best international practices.
Powers for Inspection and Auditing Matters
1 - Employees authorised by the CMVM to conduct inspections or audits shall be treated as authority officers, and may:
a) Gain access to any facilities, properties and means of transportation of entities benefiting from CMVM activities and those cooperating with them;
b) Inspect the books and other records, in any form, related to entities benefiting from CMVM activities and those cooperating with them;
c) Obtain, by any means, copies or extracts of controlled records;
d) Request from any legal representative, employee or co-worker of entities benefiting from CMVM activities and those cooperating with them, any clarification on facts or documents relating to the object and purpose of the inspection or audit and record the answers provided;
e) Identify, for subsequent action, the entities and persons in breach of the laws and regulations subject to CMVM supervision;
f) Request assistance from the police and administrative authorities whenever deemed necessary for the proper performance of their duties.
2 - Under the respective supervisory powers and whenever deemed necessary in view of the exceptional nature of the situation under review, particularly considering the significant complexity or the duration analysing the situation may require, the CMVM may contract experts to support and monitor its employees, providing them, within the scope of this service, with the right of access to the relevant information while thus falling subject to the duties of confidentiality and restricted treatment of information under the terms applicable to the CMVM following presentation of their respective credentials.
Jurisdiction and Responsibility
1 - The penalties resulting from offences may be subject to appeal under the terms provided for by the laws on judicial organisation.
2 - The Court of Competition, Regulation and Supervision represents the competent entity for ruling on disputes concerning sanctions resulting from administrative infractions.
1 - Members of CMVM bodies and its employees shall answer civilly, criminally, disciplinarily and financially for their acts and omissions in the exercise of their duties, under the Constitution and further applicable legislation.
2 - Financial liability shall be made effective by the Court of Auditors in accordance with the respective legislation in force.
3 - When sued by third parties, in accordance with paragraph 1, members of CMVM bodies and their employees are entitled to legal advice provided by the CMVM, subject to the latter's right to legal recourse, in general terms.
Disclosure of Information
1 - During the first quarter of each financial year, the CMVM shall present its activity plan and its development program to the competent parliamentary committee of the National Parliament.
2 - Every year, CMVM prepares and sends to the parliament and the government a detailed report on the previous year's activities and operations and with the said report published on its website.
3 - Whenever so requested, CMVM body members appear before the parliamentary committee to provide information or clarification on their activities.
4 - Without prejudice to the annual obligations laid down in the law approving the state budget, the CMVM shall observe the provisions of Article 67 of the budgetary framework law, approved by Law No. 91/2001 of 20 August.