Investor's Guide – How to set up a company - Incorporatrion and Registration of a Company - Traditional set-up

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Investor's Guide

 

 

Incorporation of a Company

 

2.2.1 Simplified incorporation

  

2.2. Set-up of a company

The Legislative and Administrative Simplification Program (“Simplex”) has been created with the purpose of simplifying procedures as well as associated practices of the Public Administration, reducing the bureaucracy for citizens and companies.

 

As for the incorporation of companies, the following Simplex procedures are noteworthy:

 

  • Company On The Spot: special framework for the immediate incorporation of companies;
  • Online Incorporation: incorporation of companies through the Internet.

Company On The Spot ("Empresa na hora")

Online Incorporation ("Empresa Online")

Costs in case of pre-approved corporate name

€360

Costs in case of pre-approved articles of association

€220

Costs in case of prior request of the corporate name approval certificate

€435

Costs in case of articles of association customized by the shareholders

€360

Where?

At the Company On The Spot counters (several locations across the country)

Telephone: (+351) 211 950 500;

Business days, from 09:00h to 16:00h

Where?

At the website:

https://eportugal.gov.pt/espaco-empresa/empresa-online

 

 

(i) Company On the Spot

 

Decree-Law no. 111/2005, of 8 July, approved the Company On The Spot framework, which allows the incorporation of a company in less than an hour; all the procedures are carried out in one of the counters of the Company On The Spot service available throughout the country, regardless of the location of the company’s registered office.

 

This service also offers the possibility of adopting a pre-approved trademark similar to the company’s corporate name during the incorporation process (“Trademark On The Spot”).

The Company On The Spot procedure is only available for  Joint-stock Limited Liability Companies, Limited Liability Companies and Sole Shareholder Limited Liability Companies.

 

A description of the steps to incorporate a Company On The Spot is set out below:

 

Step 1: Choosing the company’s name

 

The shareholders shall choose from a list of pre-approved corporate names (available online at the Company On The Spot website or at any Company On The Spot counter). This list is a selection of proposed names that already have an associated legal entity number, that also corresponds to its taxpayer number (“NIPC”), and a Social Security number, to be issued upon incorporation.

 

However, the definitive attribution of the corporate name is only carried out in person at the moment of incorporation.

 

It is possible to choose a name not included in the aforementioned list of pre-approved corporate names in case a corporate name approval certificate previously obtained with the National Registry of Legal Entities is presented (this procedure is detailed below in Step 1 of the Traditional incorporation procedure).

 

Step 2: Choosing pre-approved articles of association

 

The shareholders shall choose one of the pre-approved articles of association (available online at the Company On The Spot website or at any of the desks where Company on the Spot can be incorporated).

 

Step 3: Appearing before the Competent Service

 

In order to initiate the Company On The Spot incorporation procedure, the shareholders must personally appear before one of the competent services for that purpose. The Company On The Spot website contains a list of all competent services in Portugal.

 

Shareholders who are natural persons must:

 

- Present an identification document (cartão de cidadão, identity card, passport or residence permit); and

- State their Portuguese taxpayer number.

 

Note: Shareholders who are natural persons may be represented by means of a power of attorney issued in the presence of a notary, lawyer or solicitor and duly legalized.

 

All shareholders who are legal entities shall also present the following documents:

- Updated commercial registry extract;

- Document granting representation powers for the incorporation of the company (minutes of resolutions or powers of attorney, as applicable).

 

Note: In the case of foreign legal entities, the commercial registry extract (or equivalent) and the document granting representation powers for the incorporation must be, respectively, legalized (with an Apostille or, in case the issuing country is not a party to The Hague Convention of 5 October 1961, by the local Portuguese Consulate) and legalized by a notary and with the apostille (as described above). Both documents must be translated into Portuguese.

 

In case the share capital is fully or partially paid up by means of contributions in kind, an auditor’s report must be presented at the moment of incorporation of the company. Contributions in kind are subject to valuation by an independent statutory auditor who shall issue a report on the valuation of the relevant contribution in kind, which is valid for 90 days and that shall be made available to the shareholders at least 15 days before the incorporation of the company.

 

It may also be necessary to submit, as the case may be, some or all of the documents referred to in Step 5 of the Traditional incorporation procedure described below.

 

Step 4: Signing the articles of association and promoting the commercial registration

 

Upon choosing the articles of association, they shall be immediately executed and the commercial registration shall be concluded immediately afterwards. The shareholders shall receive an access code to the online commercial registry certificate, the social security number and a certificate of the articles of association of the company.

 

Additionally, a company card (in electronic form) shall be issued. The company card is the ID card of the company and shall contain the Legal Entity Identification Number (“NIPC”) of the company, which also corresponds to its taxpayer number, and the company’s social security number. This card also contains the main Economic Activity Code of the company and up to 3 secondary codes, its legal nature, the address of the registered office and its date of incorporation.

 

Step 5: Share Capital

 

Except in the case of postponement of capital contributions, the shareholders shall deposit the share capital within 5 days after the incorporation. As for Limited Liability Companies and Sole Shareholder Limited Liability Companies, the shareholders may declare in the incorporation document that the share capital will be deposited in a bank account opened in the name of the new company until the end of the first financial year.

 

In case of contributions in kind regarding assets whose transfer is subject to mandatory registration (e.g. transfer of real estate property), the competent service shall assess if any taxes are applicable (e.g. Property Transfer Tax) and ensure that incorporation only takes place after their respective payment.

 

Step 6: Commencement of activity statement

 

The company shall be registered for tax purposes by filing a commencement of activity statement, which may be immediately presented to the Company On The Spot service, as long as it is signed by its Certified Accountant (Técnico Oficial de Contas) (“TOC”). Otherwise, the commencement of activity statement shall be filed with the tax services within 15 days following the company’s incorporation.

 

Step 7: Ultimate Beneficial Owner Statement

 

Within 30 days of the registration of its incorporation, the company must identify its ultimate beneficial owners by submitting a statement to that effect in the electronic platform of the Central Registry of Ultimate Beneficial Owners.

 

For companies incorporated under the Company On The Spot framework, it is possible to request, by appointment, the assisted completion of the ultimate beneficial owner statement, which will have an additional cost of €15.

 

Step 8: Minutes Books

 

After the commercial registration of the incorporation is concluded, the company must prepare the minutes books in which the minutes of the resolutions of the general meeting and of the other corporate bodies (as applicable) shall be recorded.

 

The cost of incorporating the company is €360. This amount may be paid in cash, by cheque or through ATM and it includes the online publication of the registration of the incorporation.

 

(ii) Online Incorporation

 

The special framework for the online incorporation of companies has been approved by Decree-Law no. 125/2006, of 29 June, and allows the incorporation of a companies through the internet.

 

The online incorporation of Joint-stock Limited Liability Companies and Limited Liability Companies (with the exception of Joint-stock European Companies and of companies whose capital is paid up by contributions in kind where the transfer of assets contributed by the shareholders of the company requires a form more solemn than written form) is made on the “Empresa Online” section of the ePortugal Portal. The procedure is supervised by the National Registry of Legal Entities regardless of the location of the registered office of the company to be incorporated. However, the proceedings may be distributed to other Commercial Registry Offices.

 

The assessment of the company’s registration request is carried out immediately (in case the company adopts a pre-approved model of articles of association) or within a maximum term of 2 (two) business days (in case the applicants agree on a different version of the articles of association which shall be submitted by one of the applicants).

The access to the Online Incorporation service requires a computer with an internet connection and digital certification resources (through the mobile digital key, the Portuguese citizen’s card or a digital certificate).

 

In case the applicant is authenticated for the first time at the ePortugal Portal, he/she will have access to the information made available by the digital certificate, citizen’s card or mobile digital key.

 

A brief description of the steps for the Online Incorporation is set out below:

 

Step 1: Choosing the company’s name

 

There are  three options  when choosing the corporate name of the company:

(i)   Choosing and reserving a name from a list of corporate names available online (list of names proposed by the National Registry of Legal Entities, which already have a Legal Entity Identification Number, that shall also correspond to its taxpayer number (“NIPC”), and a Social Security number, to be issued upon incorporation);

(ii)  Submission of the intended corporate name for approval by the National Registry of Legal Entities, within one business day. Once the corporate name is approved, the applicant will receive an e-mail with a link allowing him/her to start the Online Incorporation during the following 24 hours; or

(iii) Choosing a corporate name through prior filing for a corporate name approval certificate with the National Registry of Legal Entities (in which case the applicant shall insert the number of the certificate in the system). The corporate name approval certificate is valid for 3 months as of the date of its issuance or renewal.

 

Step 2: Definition of articles of association and other company-related information

 

The applicant must select either a pre-approved template of the articles of association or a customized document prepared/approved by the applicants.

 

The following information should be filled in:

 

a) Company:  

     

- In case the company’s name is selected from the list of pre-approved corporate names, reference to the corporate purpose that shall be added to the company’s name (optional);

- Type of company;

- Registered office;

- Corporate purpose;

- Economic Activity Code;

- Share capital; and

- IBAN (optional) for possible reimbursement by wire transfer.

- Without prejudice to the above, and in case the applicant has chosen pre-approved articles of association, the following information shall be added:

 

(i)   how share capital will be paid-up;

(ii)  in case of a Joint-stock Limited Liability Company, the face value of the shares; and

(iii) binding rule.

 

Whenever applicable, administrative licenses may also be required for conclusion of the incorporation procedures.

 

b) Applicants:  

Shareholders:

 (i)  Information on shareholder(s) who are natural persons – name, gender, taxpayer number, marital status (and, if married, the marital property scheme and name of spouse), place of birth, nationality, address, telephone contact and e-mail address;

(ii)  Information on shareholder(s) who are legal entities – corporate name, registered office and legal entity number; and

(iii) Face value of the shares (Limited Liability Companies – “quotas” – and Joint-stock Limited Liability Companies – “ações”) to be held.

 

In case of use of customized articles of association, the name, the Portuguese taxpayer number and e-mail of the shareholder shall be included in the forum (optional). This identification allows the shareholders to have access to the draft of the articles of association online for discussion purposes.

 

In case of the use of customized articles of association the name, Portuguese taxpayer number and e-mail of the shareholder shall be included in the forum (optional). This identification allows the shareholders to have access to the draft of the articles of association on-line for discussion purposes.

 

Board of Directors and Supervisory Board: 

(i)   In case of Joint-stock Limited Liability Companies, identification of the Effective Sole Auditor, Alternate Auditor and director(s) (full name, address and Portuguese taxpayer number); or

(ii)  In case of Limited Liability Companies, identification of the director(s) (full name, address and Portuguese taxpayer number).

 

Chartered Accountant (Técnico Oficial de Contas) ("TOC") – three options: 

(i)   Appoint a TOC by inserting the respective data (association member number, name, taxpayer number, professional address, telephone contact and e-mail address);

(ii)  Select a TOC from the list made available by the Association of Certified Accountants (Ordem dos Contabilistas Certificados); or

(iii)  Not to appoint a TOC and file the commencement of activity statement before the tax authorities within 15 days after incorporation.

 

Step 3: Adhesion to an Arbitration Centre

 

After inserting the company’s information, the applicant shall inform whether he/she accepts to adhere to an arbitration centre. The adhesion is simple, voluntary and has no cost: the applicant shall fulfil the form “Adesão Plena e Imediata” at the time of the Online Incorporation. By this undertaking, the company accepts to submit to such centre exclusive jurisdiction in relation to any conflicts that may arise within the attributions of the centre.

 

Companies that adopt Economic Activity Codes related to the sale and purchase of vehicles or provision of services related to vehicles are only allowed to adhere to the Automobile Arbitration Centre.

 

Step 4: Validation of the articles of association

 

After inserting the information on the company and participants, the applicant may proceed with the validation of the articles of association.

 

For pre-approved articles of association, the applicants are only allowed to review the document in order to correct errors or inaccuracies resulting from the data insertion. This is performed in a private forum with limited access to shareholders whose e-mail address has been provided in the Step 2.

 

When the articles of association are prepared by the shareholders, the applicant shall upload them, so that they are available to all shareholders in the private forum.

After receiving notice from all shareholders, the applicant may proceed with any necessary amendments by accessing the process in the Company’s Electronic File (Dossier Eletrónico da Empresa).

 

When this process is concluded, the application shall automatically generate a social security number.

 

Step 5: Signature and submission of documents

 

After validating the articles of association, the applicant shall proceed with the following steps: 

  • Printing and signing the following documents: 

( i)   Articles of Association;

(ii)   Statement of identification of ultimate beneficial owners, pursuant to Article 3 of Law 89/2017, of 21 August (these elements must be included in the company's incorporation document, and may appear in a schedule);

(iii) Form of adhesion to the Arbitration Centre (if applicable); and

(iv) Form for signature legalization. 

  • Uploading the aforementioned signed documents as well as: 

(i)   Relevant powers of attorney (if applicable);

(ii)  Commercial registry extracts (if applicable);

(iii) Minutes of resolutions of the corporate bodies (if applicable);

(iv) Articles of association of shareholders (if applicable);

(v)  Statement of acceptance issued by Effective Sole Auditor (if applicable);

(vi) Statement of acceptance issued by Alternate Sole Auditor (if applicable);

(vii) Statement of acceptance of the appointment issued by the directors;

(viii) Statement of unawareness, on the part of the directors, of any circumstances that might inhibit them from holding the office.

(ix) Administrative authorizations (if applicable); and

(x)  Any other relevant documents.

The online submission of documents replaces the requirement of sending physical documents by mail. The submitted documents shall be kept until receipt of confirmation of the company’s incorporation.

 

Step 6: Payment

 

The costs of incorporation are:  

  • €220 (pre-approved model of articles of association); or
  • €360 (articles prepared by the applicant and agreed between the shareholders)

In case a trademark is associated to the company, an additional amount of €100 shall also be paid (plus €44 per each additional class of trademark).

 

Step 7: Next Steps

 

After submitting the company incorporation request on the Online Incorporation service, the information is validated by the competent services. Afterwards, the following steps will occur:

 

n    E-mail notice to the applicant acknowledging the receipt of the request by the competent services;

n    In case irregularities are detected, the applicant receives an e-mail requesting the respective rectification, which must be done within 5 days. The rectification is made through the Online Incorporation website in the ePortugal Portal. If the rectification does not occur within the deadline mentioned, the registration becomes provisional or is refused.

n    E-mail notice to the applicant confirming the conclusion of the incorporation process;

n    Documentation sent by regular mail to the company’s registered office: commercial registry certificate, company’s card and payment receipts;

n    Publication of the company’s registration online at the website of the Ministry of Justice;

n    Notice to the tax authorities: the information of the TOC (if appointed or assigned) is also made available so that they may submit the statement of commencement of activity;

n    Submission of the information on the company’s incorporation to the Social Security services;

n    Submission of the information to the Direção Geral da Política de Justiça (DGPJ): information related to the registration of companies to the National Institute of Statistics; and

n    After incorporation, the DNS.PT Association (Associação DNS.PT) issues, by e-mail, a user ID and password allowing the management of the Internet domain for the company’s website.

 

Step 8: Ultimate Beneficial Owner Statement

 

Within 30 days of the registration of its incorporation, the company must identify its ultimate beneficial owners by submitting a statement to this effect in the electronic platform of the Central Registry of Ultimate Beneficial Owners.

 

Step 9: Minutes Books

 

After the commercial registration of the incorporation is concluded, the company must prepare the minutes books in which the minutes of the resolutions of the general meeting and of the other corporate bodies (as applicable) shall be recorded.

 

2.2.2 Traditional Incorporation

 

Although the incorporation of a company in Portugal may be carried-out through one of the simplified procedures described above, any investor may incorporate a company through the traditional procedure, set out below:

 

Step 1: Corporate name approval certificate

 

The first step is to file a request for the issuance of a corporate name approval certificate. The filing shall be submitted by one of the future shareholders of the company (or by its legal representative, including its lawyer) and shall identify the name (up to a maximum of three options, indicated in order of preference), corporate purpose and respective economic activity codes, as well as the district and municipality of the address of its registered office.

 

The application for the corporate name approval certificate can be completed online through the platform “Empresa Online” on the ePortugal Portal, as well as at the Institute of Registries and Notary services, in person at the National Registry of Legal Entities, or by regular mail, by filling out and signing the appropriate form (Model 1).

After its issuance, the corporate name approval certificate is valid for 3 months as of the date of its issuance or renewal.

 

Step 2: Share Capital

 

The contributions in cash to the company’s share capital shall be deposited in a bank account opened in the name of the company to be incorporated. Currently, since it is not possible, in practice, to open a bank account in the name of the company prior to its incorporation, the deposit of the share capital will only occur later.

 

If there are contributions in kind, they shall be subject to valuation by an independent statutory auditor, who shall issue a report on the valuation of the contribution in kind, which shall be valid for 90 days and made available to the shareholders at least 15 days before the incorporation document (see below).

 

In case of contributions in kind regarding assets whose transfer is subject to mandatory registration (e.g. transfer of real estate property), the competent service shall assess if any taxes are applicable (e.g. Property Transfer Tax) and ensure that incorporation only takes place after their respective payment.

 

As regards Joint-stock Limited Liability Companies, the payment of 70% of contributions in cash may be postponed for a period of 5 years. The issuance premium (if existent) may not be postponed.

 

As regards Limited Liability Companies, the payment of the full amount of the contributions in cash must be made on certain dates or be dependent on certain and determined facts, and, in any case, the payment may be demanded after five years have elapsed from incorporation. Without prejudice to the aforementioned possibility, the shareholders may state in the incorporation document that the payment of the contributions to the company’s share capital will be made up until the end of the first financial year.

 

Step 3: Incorporation document

 

The incorporation of the company shall be formalized by means of the execution, by the shareholders, of a written document that shall contain the articles of association of the company.

 

Under Decree-Law no. 76-A/2006, of 29 March, the shareholders may incorporate the company through the execution of a private document even if there are contributions in kind involving the transfer of a real estate property (the public deed is no longer required pursuant to Decree-Law no. 116/2008, of 4 July).

 

The signatures of the shareholders shall be legalized, in person, by a notary, lawyer or solicitor (solicitador). In case of a contribution in kind regarding assets whose transfer is subject to mandatory registration (e.g. real estate assets), the notary, lawyer or solicitor must not only certify the signatory’s presence but also authenticate the incorporation document.

 

It is recommended that the members of the corporate bodies are appointed in the incorporation document so as to allow the registration of these members to occur simultaneously with the registration of the company’s incorporation. It should be noted that all members of corporate bodies that are not resident in Portugal for tax purposes must obtain a Portuguese taxpayer number. For EU/EEA citizens, this taxpayer number may be obtained directly with the tax authorities (in person or by means of appointed proxy(ies)); non-EU/EEA citizens must appoint a Portuguese tax resident, who can be either a natural person or a legal entity, as representative to handle matters with the Portuguese tax authorities.

 

With the entry into force of the Legal Framework of the Central Registry of Ultimate Beneficial Owners (Regime Jurídico do Registo Central do Beneficiário Efectivo), approved by Law no. 89/2017, of 21 August, the incorporation document must contain a list indicating the ultimate beneficial owner(s) of the company, in accordance with article 3 of said law.

 

Step 4: Commercial Registration

 

The incorporation of the company (and the appointment of the members of the corporate bodies) shall be submitted to commercial registration. The company’s incorporation and the appointment of the members of the company’s corporate bodies will be effective vis-à-vis third parties upon conclusion of such registration.

 

The registration request (Model 1) shall be submitted with the Commercial Registry Office by any shareholder, director or legal representative (including lawyers) of the company, jointly with the following documents:

 

n          Corporate name approval certificate (as obtained in Step 1);

n          Incorporation Deed (including the respective articles of association and list indicating the ultimate beneficial owner(s) of the company);

n          Statutory Auditor’s report for contributions in kind (if applicable);

n          Evidence of tax payment (if applicable);

n          Statement of acceptance issued by Effective Sole Auditor (if applicable); and

n          Statement of acceptance issued by Alternate Sole Auditor (if applicable);

n          Statement of acceptance of the appointment issued by the directors;

n          Statement of unawareness, on the part of the directors, of any circumstances that might inhibit them from holding the office.

 

The Commercial Registry Office shall automatically publish the registration online and convey the incorporation to the National Registry of Legal Entities to register the new company in the Central File of Legal Entities.

 

Upon completion of the registration of the incorporation of the company (and appointment of the members of the respective corporate bodies), an access code to the online permanent commercial registry certificate of the company shall be provided by the Commercial Registry.

 

Decree-Law no. 73/2008, of 16 April, has created a bilingual commercial registration, making it possible to apply for an access code to an English version of the online permanent commercial registry certificate of the company. The authorities are contemplating the possibility of adding other foreign languages, if needed, in the near future.

 

Step 5: Commencement of Activity Statement

 

Within 15 days from the approval of the registration of the company’s incorporation, the company must be registered for tax purposes by filing a commencement of activity statement with the tax authorities together with the delivery of its permanent commercial registry certificate.

 

The TOC shall sign the statement together with the company’s representatives.

 

Step 6:  Ultimate Beneficial Owner Statement

 

Within 30 days of the registration of its incorporation, the company must identify its ultimate beneficial owners by submitting a statement to this effect in the electronic platform of the Central Registry of Ultimate Beneficial Owners.

 

Step 7: Minutes books

 

After the commercial registration of the incorporation is concluded, the company must prepare the minutes books in which the minutes of the resolutions of the general meeting and of the other corporate bodies (as applicable) shall be recorded.  

 

Summary of the Traditional Incorporation procedure

 

TRADITIONAL INCORPORATION

Steps

Actions

Relevant Entity

Cost

Corporate name approval certificate

Request a valid corporate name for the new company

National Registry of Legal Entities

€75

Share capital – contributions in kind (if applicable)

Report on the contributions in kind

Independent Statutory Auditor

(depends on the type of company)

Incorporation document

Execute the private document incorporating the company

N/A

N/A

Commercial registration

File for registration of the company

Commercial Registry Office

€360 (incorporation)

€87.5 (appointment of corporate bodies in case the respective registration is submitted simultaneously with the registration of the incorporation)

Share capital contributions in cash (if applicable)

Deposit of the share capital

Bank

(variable)

Commencement of activity statement

File the commencement of activity statement tax purposes

Tax Authorities

N/A

Ultimate Beneficial Owner statement

File the Ultimate Beneficial Owner statement

Central Registry of Ultimate Beneficial Owners - Institute of Registries and Notary services

N/A

Minutes books

Prepare the minutes books to record the resolutions of the shareholders and of other corporate bodies

N/A

N/A

 

 

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