Article 32 of Decree-Law no. 486/99, of 13 November, which enacted the Portuguese Securities Code, provides for the possibility of associations with the primary statutory objective of protecting the interests of investors in securities, having among their associates at least 100 individuals not qualified as institutional investors and effectively exercising their activity for more than one year, benefiting, through the representativeness which they are assured by these means, from a set of rights conferred by this Code and legislation which complements it.
Rights afforded to associations for the protection of investors in securities which are already recognised by law include the right to class action, under the terms of item b) of Article 31.1 of the Portuguese Securities Code, the right to intervene in proceedings for the mediation of conflicts, in accordance with Article 34.2 of the aforementioned Code and, also, the right to appoint a representative to the advisory board of the Portuguese Securities Market Commission (Comissão do Mercado de Valores Mobiliários - CMVM), as stipulated in item g) of Article 20.1 of Decree-Law no. 473/99, of 8 November, which enacted the statute of this Commission.
In this context, and with a view to facilitating the organised intervention of investors in defence of their interests, the aim of this document is to establish rules for the process of verifying the pre-requisites in force for the constitution of associations for the defence of investors in securities and to complete the framework for the rights to be granted to these associations.
Thus:
In the exercise of the legislative authorisation granted by Article 1 of Law no. 38/2003, of 22 August, and under the terms of items a) and b) of Article 198.1 of the Constitution, the Government hereby decrees the following:
Chapter I
General Provisions
Article 1
Aim
This document establishes rules for the following:
a) The process of verifying the pre-requisites referred to in Article 32 of the Portuguese Securities Code, enacted by Decree-Law no. 486/99, of 13 November;
b) The rights of associations for the defence of investors in securities observing the said pre-requisites;
Article 2
Independence of associations
Associations for the defence of investors shall be independent, in particular, of issuers of securities, operators of markets, systems and services related to securities, and financial intermediaries.
Chapter II
Registration with the Portuguese Securities Market Commission (CMVM)
Article 3
Information to accompany requests for registration
1. The registration of associations for the defence of investors with the Portuguese Securities Market Commission (CMVM) depends on the issue of a request to this Commission.
2. The aforementioned request shall be accompanied by the following elements:
a) A copy of the statute and act of approval;
b) A copy of the identity card of the association as a legal person;
c) A declaration with the names and number of associates which are non-institutional investors.
Article 4
Deadline for registration
1. The decision regarding the granting or refusal of registration shall be made within 30 days of receipt of the documents referred to in paragraph 2 of the previous article.
2. CMVM may also request any documents or information which it considers necessary to the verification of the pre-requisites for registration, in which case the deadline referred to in the previous paragraph shall be suspended.
Article 5
Decision
The association for the defence of investors shall immediately be notified of the decision to grant or deny registration and, if denied, the reason thereof shall be duly provided.
Article 6
Expiry of registration
1. If the association for the defence of investors ceases to fulfil all the pre-requisites which led to it being granted registration, and CMVM is notified of this fact or has proven knowledge of it, the association shall be given a period of 15 days in which to rectify the situation.
2. During the period referred to in the previous article, the rights of the association for the defence of investors shall not be exercised.
3. Registration shall expire whenever, on expiry of the period referred to in paragraph 1, the failure to fulfil the pre-requisites in question has not been rectified.
Article 7
Disclosure of registered associations
CMVM shall, by means of its information disclosure system, publish an up-to-date list of associations for the defence of investors and registered federations.
Chapter III
Rights of associations for the defence of investors
Article 8
Right to participate
1. Associations for the defence of investors shall be afforded the right to participate in the definition of major legislative guidelines related to the securities market, in particular policies for the protection of investors, by drawing up statements of opinion, studies or reports.
2. In the case of regulations governing matters of interest to investors, the body with regulatory powers must hear the opinion of associations for the defence of investors.
Article 9
Right to consultation and information
Associations for the defence of investors shall have the right to consult registers of a public nature held by CMVM, and to seek clarification on information placed at the disposal of investors by that entity.
Article 10
Right to form groups
1. Associations for the defence of investors are free to group themselves into regional, national or international federations with goals identical to their own.
2. Federations shall be registered with CMVM under the same terms as associations, and, to this end, only one of the associations for the defence of investors needs to fulfil the pre-requisites referred to in Article 32 of the Portuguese Securities Code.
Chapter IV
Final and transitory provisions
Article 11
Associations already constituted
1. Associations for the defence of investors in securities already constituted must prove that they fulfil the pre-requisites set down in the Portuguese Securities Code for the exercise of the rights provided in this document.
2. The provisions of this document shall apply to requests for registration addressed to CMVM subsequent to the entry into force of the Portuguese Securities Code, and the date on which it comes into force shall be considered as the start of the initial term for the effects of counting the period referred to in Article 4.1.
Read and approved by the Council of Ministers on 2 October 2003 - José Manuel Durão Barroso - Maria Manuela Dias Ferreira Leite.
Promulgated on 6 November 2003.
For publication.
President of the Republic, JORGE SAMPAIO
Countersigned on 11 November 2003.
The Prime Minister, José Manuel Durão Barroso.
