Introduction

Law nr. 6/2018 entered into force on 23rd February. However, some of its provisions still require further regulation.

The concept of CRM is defined in article 2 of the law, as the person undertaking the duty to assist a company under difficult situation or insolvent, pursuant to the Portuguese Insolvency Code.

Access to the activity

In order to become CRMs, candidates shall, cumulatively:
- Possess a university degree and professional experience considered adequate for the activity;
- Attend a training course in company recovery mediation by a certified entity (as established by Ordinance of the ministries of justice and economy, still pending approval);
- Not be in any incompatible situation with the exercise of the activity and
- Be considered suitable to act as mediators.

An experience of at least 10 years as director or manager of companies, as financial auditor or in credit restructuring is considered suitable professional experience for this purpose.

Current judicial administrators may become CRMs as well, provided that they attend a training course in company recovery mediation by a certified entity and are enlisted with the IAPMEI (the Portuguese Agency for Competitiveness and Innovation).

In terms of incompatibilities, general rules applicable to the members of corporate bodies of companies also apply to CRMs.

A person may not be appointed CRM to mediate negotiations involving a company in which he/she has (i) served as member of the corporate bodies in the previous 3 years or (ii) has been appointed, and effectively acted, as insolvency administrator or provisional judicial administrator.

Furthermore, a CRM may not be appointed to mediate negotiations involving his/her own company, a company belonging to his/her spouse or relatives or a subsidiary of a company which the CRM, his/her spouse or relatives control.

The proceeding is organized by IAPMEI, before which all candidacies shall be submitted. The IAPMEI will assess the fulfilment of all legal requirements, including the suitability of the candidates.

All applications shall include (i) curriculum vitae, (ii) certificate of graduation, (iii) certificate of criminal registry, (iv) statement on the exercise of any other paid activity and on the non-existence of any legal incompatibility, (v) declaration of suitability, (vi) evidence of attendance of the training course on company recovery mediation, (vii) identification of geographic area of activity, (viii) other information which the candidate considers of relevance.

As regards the evaluation of suitability, the IAPMEI will take into account all information regarding the past professional performance of the candidate, his/her behavior and the circumstances under which he/she have taken decisions.

For example, the IAPMEI will consider, among other, the way the candidate has managed his/her professional and personal businesses, as well as whether during the last 15 years the candidate, a company dominated by him/her or in which he/she has been a director, manager or member of the supervisory body has been declared insolvent, or if the candidate has been sentenced for any crimes of theft, robbery mockery, extortion, and other crimes.

Official List

The IAPMEI will publish on his website the official lists of CRMs, which include their names, professional addresses, e-mails and professional phone numbers.

The entry in the official list expires after 5 years.

Rights, Duties and Principles

When performing their activities, CRMs shall act with independence and neutrality, and in accordance with the principles of equality and impartiality. The activity is subject to professional secrecy.

Sanctions

Breach of the statute by CRMs is subject to penalties ranging from € 1000 to € 200 000,00. Negligent actions are punishable as well.

Other sanctions may be applied, such as seizure and loss of the object of the infraction, temporary ban on the exercise of the activity or cancellation of the registration.