Shareholders’ Loans under the New Commercial Code
We hereby inform the business community and other interested parties of the changes to the regime of shareholders´ loans introduced by the New Commercial Code, approved by Decree-Law no. 1/2022, of May 25 (the "New CCom"), which came into force on September 22, 2022.
As an introductory note, we remind you that under of the Commercial Code, approved by Decree-Law no. 2/2005 of December 27, as amended by Decree-Law no. 2/2009 of April 24 and by Decree - Law no. No. 1/2018 of May 4, and revoked by the New CCom (the "Revoked Code"), the granting of shareholders' loans depended on the approval of the General Assembly, and the other corporate bodies could not resolve on the call and reimbursement of shareholders' loans (paragraph e) of no. 1 of article 129 of the Revoked Code).
Considering that the shareholders' loan agreement is a form of corporate financing (which is intended to be swift and effective), subjecting it to the approval of the General Assembly made the provision and reimbursement of shareholders' loans a somewhat lengthy process and with unnecessary associated costs, such as those related to the convening of General Assemblies.
The New CCom not only removes this matter as an exclusive competence of the General Assembly but, also, does not attribute such competence to any other corporate body, thus leaving it to the shareholders to determine, in the company's articles of association, whether or not the provision and reimbursement of shareholders' loans is a competence of the General Assembly.
With this innovation, we understand that the New CCom has opened space for the provision and reimbursement of shareholders' loans to be agreed and contracted directly with the shareholders by the company's Management or Board of Directors, making the process faster and less costly.