On August 10, 2018, Banco de Portugal (BoP) and the Portuguese Securities and Exchange Markets Commission (CMVM) published a guide called “Welcoming Collective Investment Management Companies”, available on their website, to help applicants through the licensing process for investment management companies in Portugal. The goal of this guide is to attract investment management companies to Portugal and make the country an appealing option for those considering relocation from the United Kingdom to an EU country.
In Portugal, the licensing process for collective investment management companies comprises an authorisation and a registration with the Bank of Portugal and a registration with the CMVM. The requirements to be fulfilled for the authorisation are mainly set out in the legal framework for credit institutions and financial companies.
The requirements for the registration at CMVM are explained in different legal texts, namely the General Regime of Collective Investments Undertakings (RGOIC) approved by Law 16/2015 of 20 July, the Commission Delegated Regulation (EU) 231/2013 of 19 December, and several CMVM regulations. Regarding the timeframe, BoP has three months to grant or refuse the authorisation from the receipt of a complete application, and CMVM has 30 business days to grant or refuse the registration (also from the receipt of a complete application). After receiving BoP’s authorisation to set up the management company, the applicant has to request the registration of the company at BoP. After the request, BoP performs an on-site validation and if all the requirements and conditions are considered in place BoP issues the decision to register the collective investment company and the company is able to start operating.
Although the registration at CMVM depends on the authorisation of Bank of Portugal, it is possible to start the process simultaneously with the two regulators. It should be noted that an effort has been made to ensure that the on-site validation is done with the presence of the two regulators in order to speed up the process.
Despite the efforts and the apparent short legal deadlines for assessment by the regulators, the process is very complex and time-consuming. Regarding the Bank of Portugal authorisation, the complexity results in part from the fact that the legal requirements are not specific for this type of entity, they were established for credit institutions and require an interpretation and adequacy with some margin of discretion. In case of the CMVM requirements, they are dispersed by various national and community legislation, making it difficult to perceive the applicable legal framework.
Among other developments, the “Welcome Guide” includes a “registration dossier” to be filed at CMVM. The registration dossier was prepared by CMVM and includes an exhaustive description of the applicable requirements necessary to obtain registration at this regulator.
This seems to be the most positive aspect of the Welcome Guide and an important step in simplifying the authorisation process for management companies.
This guide has the merit of serving as a guide for CMVM’s registration procedures, as promoters of these types of companies are now able to count on a document containing all the requirements needed for CMVM registration.
An important step was taken towards clarity but in our opinion it is still insufficient for these procedures to be considered efficient. The licensing still needs to be simplified and clarified, by naming a dossier that covers not only one phase of the licensing procedures – registration with CMVM – but the whole process (authorisation and registration), by listing the legal requirements more systematically, eliminating the duplications that appear in the various legal sources, and by fostering greater communication between applicants and regulators so the process is quicker and more efficient.
We hope that in the near future the Welcome Guide will be improved and fine-tuned and act as an incentive for the creation of new management companies, and Portugal will be a more attractive entry point for obtaining a community passport for foreign companies.
Patricia Goldschmidt is counsel at PBBR. She can be contacted at firstname.lastname@example.org