A não distribuição abusiva dos lucros de exercício nas sociedades por quotas e nas sociedades anónimas fechadas

Abstract

This master's thesis primarily aims to address the issue of abusive resolutions regarding the non-distribution of profits, which infringe upon the abstract and nonderogable right of minority shareholders to share in the profits generated by the company. The right to profit is a fundamental right of shareholders and is indeed the cause of their participation in the company. It is a right that, in abstract terms, is non-derogable and non-waivable and constitutes an essential characteristic of the corporate contract. This right to profit is realized through its distribution in each financial year, which is regulated in Articles 217, Paragraph 1 and 294, Paragraph 1 of the Commercial Companies Code, respectively. This regime enshrines a supplementary rule that generally requires the distribution of half of the legally distributable profit ascertained in each year. However, it can be overridden according to the law, except for a different contractual clause or a resolution passed by a three-quarters majority of votes corresponding to the share capital at a general meeting convened for this purpose. Therefore, the majority shareholders holding three-quarters of the votes corresponding to the share capital can, at their discretion, override the supplementary rule of profit distribution. A resolution that thus affronts the right to periodic profit distribution is one that defrauds the legitimate expectations of shareholders to share in the company’s profits and empties the economic and social content of the right to profit inherent in the shareholding. Thus, resolutions regarding the non-distribution of profits that, accumulating into a successive practice over several years, exclude minority shareholders from the periodic distribution of profits without justified reason are invalid due to abuse of right.

Date of Award	23 Apr 2025
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Paulo Olavo Cunha (Supervisor)