Abstract
In 2014, the European Commission, in a communication approving the guidelines on state aid to promote risk-financing investments (2014/C 19/04), considered compatible with the internal market the granting of aid, including quasi-equity investments, aimed at developing certain economic activities, with a greater focus on SMEs. Since then, some European legal systems have established the figure of participative loans, with more or less similar mechanisms. The present study will address Decree-Law no. 11/2022, of 12 January, which introduced the figure in the Portuguese legal system. As it will be demonstrated, a significant number of Portuguese companies face serious problems with a high debt ratio, which, for the vast majority, means an added difficulty, both in terms of pursuing their corporate activities and in trying to remain financially viable (mainly in the first years of activity). This henomenon has led to the regulation of the figure of the participative loans, which aims to be an alternative to the traditional ways of financing companies, mainly the financing that is done through bank loans. The purpose of this study is to describe briefly the diploma of participative loans and to contextualise it in terms of economic policy – considering the purpose of the consecration of the figure in the national legal system –, and to reflect on the problem of the (under)capitalisation of Portuguese companies. Subsequently, with the purpose of better understanding the diploma of participative loans and its effectiveness, a key point will be analysed: the scope of the diploma in the corporateplan, namely the correct interpretation of its article 2, no. 2. Therefore, it will be sought to determine the scope and meaning of that provision when it states that "(...) shareholders' loans are considered as shareholders' equity for the purposes of commercial law (...)", namely if the amount lent should be considered for the purposes of accounting rules or if it is only a concept limited to the field of the Portuguese Insolvency and Corporate Recovery Code (“CIRE”) and the Portuguese Commercial Companies Code (“CSC”). Finally, a closer look will be given to the contractual aspect of participatory loans. Throughout the first part of the analysis of the contractual aspect of this type of loan, the rules of the diploma will be described and, mainly, some of the unresolved issues will be discussed: When the borrower can repay the lender, does the lender have a right to demand the amount owed, or, on the contrary, should the only solution be to wait until the credit can be converted into capital? What are the reserves provided for in article 11(1)(a) of the diploma 6 concerning the limitation to remuneration and/or reimbursement? Regarding the fixed remuneration (interest), is there any limit to be imposed or is this issue left to the parties’ autonomy? Will the granting of this type of loan be restricted to the lenders mentioned in article 3 of the diploma? Finally, in a second stage of the analysis of the contractual aspect of the participative loan, we will try to define its legal nature, namely, to know if it may be characterised as profitparticipating loan (mútuo parciário) and/or silent partnership (associação em participação), pre-existing contractual figures.
Date of Award | 13 Oct 2023 |
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Original language | Portuguese |
Awarding Institution |
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Supervisor | Rui Pinto Duarte (Supervisor) |
Designation
- Mestrado em Direito