Newsletter April 2020

Legal Updates

Brexit & the agreement on the unified patent court

The British government confirmed that will not be a Unified Patent Court Member (UPC) after the Brexit. The UPC is a common jurisdictional organ of the Contracting European Union Members for litigation related to European patens and European patents with unitary effect.

Until the United Kingdom’s ratification is not officially resumed is not clear if the UPC can enter in force, since one of the three Section Central Courts should be in London.

The United Kingdom´s decision raises the question of whether the other participants – currently sixteen countries have already ratified the Agreement – will still adhere to the EU patent implementation.


Judicial searches of law firms

Following the recent events, within the “Operação Fora de Jogo”, it is important to address the issue related with the possibility of judicial searches of law firms.

It is common knowledge that lawyers, as professionals, are covered by professional secrecy which under a restrictive interpretation of the term seamed to rule out the possibility of such events happening.

It should be noted that not only the Criminal Procedure Code, but also the Statutes of the Bar Association rule this matter specifically in order to achieve the protection of the professional secrecy, as well as the possible crime under investigation.

Having said that, it should be highlighted that the authorities can only seize and investigate the documents that are, expressly, content of the criminal offence, under the penalty of nullity and there are still additional mechanisms to evade the court’s evaluation of those documents.

Caiado Guerreiro is a law firm with high reputation throughout the market due to always combining the superior defense of the client’s interests with the strict compliance with the law and that is the standard to which it will continue to abide by.


Business Updates

CMVM simplifies SGOIC activity

The Portuguese Securities Market Commission (CMVM) has once again adopted measures to simplify the activity of collective investment undertakings’ management companies (SGOIC).

After having centralised in itself the responsibility for the supervision of SGOICs (which was previously shared between the CMVM and the Bank of Portugal), the CMVM  through Regulation no. 3/2020, published on 23 March 2020, implemented several measures relating to the access of these companies to the activity, promoting an additional level of simplification and limiting the information requested to what the CMVM considers to be essential.

In particular, the enumeration of the instructional elements necessary for the authorisation procedures for the commencement of activity, as well as for the execution of merger and demerger operations involving SGOIC, the definition of the changes to the conditions of authorisation of SGOIC considered as substantial and non-substantial, and the clarification of the accounting regime applicable to SGOIC, assume particular relevance.


ICOS. A trend or the future for financing?

The Initial Coin Offering (ICOs) consists in financing operations that resort to the public in order to finance a project. The entity which intends to benefit from this financing method announces, trough the proper platforms, that it will issue a certain number of tokens and those who are interest may subscribe them for a certain value. The token consists of a right or functionality related with the project that is foreseen for financing, for instance, the right to vote on the project or the right over the generated return.

Although there are no legal dispositions directly applicable to this financing method or to the tokens themselves, the Portuguese Stock Market Authority considers that on account of the specific case, the tokens may be considered as securities and the legal provisions relating to public offers, particularly the drawing up and approval of a prospectus, shall apply. Under different conditions it may be considered as crowdfunding.

ICOs have had a high uptake from start-ups that often have difficulties in obtaining financing from banks. One of the most famous and profitable ICOs ever was Ethereum, which raised about $18 million in 42 days.