I OVERVIEW OF M&A ACTIVITY
The Portuguese economy has showed some positive signs in the last year, in particular, with the GDP growing 1.5 per cent in 2015, the highest growth rate of the past few years (the GDP started to grow in 2014, with a growth rate of 0.9 per cent, in contrast with the 1.4 per cent decrease in 2013 and the 3.3 per cent decrease in 2012) and 0.9 per cent in the first quarter of 2016,2 mainly due to the highest ever volume of exports, reaching €49.8 billion, 3.6 per cent higher than in 2014,3 and the increase of internal demand.
In addition, 2015 saw the conclusion of the financial assistance programme with the European Commission, the International Monetary Fund and the European Central Bank, initiated in 2014 further to Portugal’s bailout in 2011 and the execution of a memorandum of understanding with those entities in May 2011.
All these signs of growth have been positively reflected in Portuguese M&A activity during the past year, both in terms of number and volume of deals, with 254 M&A deals totalling more than €19 billion.4 The following events have been key factors for this dynamic in the Portuguese M&A market:
- a Several privatisations, foreseen under the Portuguese financial assistance programme, were carried out or completed during the past year, such as the sale of EGF (a company engaged in the treatment and management of wastewater and solid urban waste, which was sold to SUMA, a joint venture between Mota-Engil and ACS, companies active in the Portuguese and Spanish construction sector, respectively), the privatisation of CP Carga (a railway freight transport operator) through the sale of 95 per cent of the company’s share capital to MSC Rail (a subsidiary of the Swiss MSC Mediterranean Shipping Company) and the sale of TAP (the leading Portuguese airline company, of which 66 per cent was acquired by a consortium headed by David Neeleman (owner of, inter alia, the Brazilian airline Azul) and Humberto Pedrosa (owner of the Portuguese transportation group Barraqueiro), which was partially reverted upon the new government taking office in November 2015).
- b Portuguese banks and other entities in the financial sector have focused on selling non-core assets and businesses.
- c In August 2014, Espírito Santo Group, a conglomerate which comprised, inter alia, one of the biggest banks in Portugal, Banco Espírito Santo (BES), collapsed, forcing a profound reorganisation in the group, including the transfer of part of BES’ businesses to a new bank (Novo Banco), and leading to the divestment of several businesses.
- d The collapse of the Espírito Santo Group resulted in significant losses in several relevant Portuguese companies and, in particular, had an impact on Portugal Telecom, the biggest Portuguese telecommunications player, affecting its merger with Brazilian Oi (a deal that was aimed at creating one of the 20 biggest telecom companies in the world with more than 100,000,000 clients) and leading to the acquisition of its Portuguese business by Altice, which was completed in June 2015.
- e International investment and private equity funds have been particularly active in the Portuguese market, presenting bids in most of the relevant deals in the tourism, insurance and banking sectors.
- f Chinese and Angolan investors also played a significant role in M&A activity, acquiring companies in several business sectors.
- g 2014 was a turning point for the real estate sector, with relevant deals in all segments, and this trend has been reinforced in 2015, which was the best year ever in Portugal in this sector, and in which deals involving the offices, hotels and shopping centres segments exceeded by 154 per cent those registered in 2014, with a global volume of €2.1 billion.5
- h The private equity funds Revitalizar, created in 2013 by the government and managed by Portuguese private equity firms, invested more than €150 million in approximately 50 Portuguese small and medium-sized companies.6
- i The wind sector has been particularly active, with the transfer of some of the biggest wind asset portfolios, including the sale of Iberwind to the Chinese group Cheung Kong for €1 billion, the sale of Finerge to First State for €900 million and the sale of a stake in EDF Energies Nouvelles’ wind business in Portugal to Lancashire County Pension Fund.
- j Significant deals also took place in the banking and insurance sector. In particular, Barclays sold its retail and insurance businesses to Bankinter for approximately €160 million, Santander acquired Banif and Apollo acquired Açoreana for €130 million.
II GENERAL INTRODUCTION TO THE LEGAL FRAMEWORK FOR M&A
The Portuguese legal framework governing M&A comprises, in particular, the following laws:
- a the Civil Code, enacted by Decree-Law No. 47344, of 25 November, as amended, which contains the general rules governing sale and purchase and contracts;
- b the Commercial Companies Code, enacted by Decree-Law No. 262/86, of 2 September, as amended (PCCC), which includes the general framework governing Portuguese companies (the most common are sociedades anónimas, which may be listed or non-listed companies, and sociedades por quotas, both of which are limited liability companies) and also the legal regime governing share capital increases and decreases, mergers and demergers, transfers of shares in sociedades por quotas and financial assistance;
- c the Securities Code, enacted by Decree-Law No. 486/99, of 13 November, as amended, which is applicable to listed companies7 but also contains the general regime regarding some matters, such as the transfer of shares in sociedades anónimas;
- d the Competition Code, enacted by Law No. 19/2012, of 8 May;
- e the Labour Code, enacted by Law No. 7/2009, of 12 February, as amended, which contains, in particular, the labour rules applicable to a transfer of an undertaking and some information obligations in cases of a modification in an employer’s shareholding structure; and
- f the private equity legal regime, recently enacted by Law No. 18/2015, of 4 March, which revoked the previous regime, enacted in 2007.
In addition, regulated sectors such as the banking and financing and the insurance sectors are governed by specific laws and regulations, some of which are issued by the respective regulatory entities.8
Moreover, privatisations are specifically governed by laws enacted by the government containing the applicable regime for each privatisation.
III DEVELOPMENTS IN CORPORATE AND TAKEOVER LAW AND THEIR IMPACT
i Financial sector – structural reforms
The memorandum of understanding established as the main goals for the financial sector, inter alia, the preservation of the stability of the financial sector, an increase of liquidity and a balanced deleverage of the banking sector, the reinforcement in the banking regulation and supervision, the restructuring of Caixa Geral de Depósitos, the state-owned bank, and the reinforcement of the legal framework governing the restructuring and winding-up of credit entities and of the deposit guarantee fund, as well as the legal framework applicable to the insolvency of natural and legal persons.
In line with these goals, profound changes have been implemented in the legal framework governing the financial sector, and most of said goals, even if to a variable extent, have been accomplished.
Decree-Law No. 298/92, of 31 December, which governs credit institutions and financial entities (RGICSF), has been the object of an in-depth reform in the past few years, enacted by several laws and decree-laws, in particular:
- a Decree-Law No. 114-A/2014, of 1 August, and Decree-Law No. 114-B/2014, of 4 August, which have partially transposed Directive 2014/59/EU, of 15 May 2014, on the recovery and resolution of credit institutions.
- b Decree-Law No. 157/2014, of 24 October, which transposed Directive 2013/36/EU, of 26 June 2013. This legal act has amended, inter alia, the rules on corporate governance, with new rules regarding the requisites that need to be met by holders of management and supervision offices; the rules on remuneration policies; and the sanctions system, with new mechanisms aimed at the streamlining and efficiency of this system.
- c Law No. 16/2015, of 24 February, which partially transposes Directives 2011/61/EU, of 8 June 2011, and 2013/14/EU, of 21 May 2013 and adds, inter alia, that the Bank of Portugal may refuse an authorisation for a credit institution if it is not demonstrated that the proposed members of the corporate bodies meet the requisites set forth in the RGICSF.
- d Law No. 23-A/2015, of 26 March, which transposes Directives 2014/49/EU, of 16 April 2014, and 2014/59/EU, of 15 May 2014. Inter alia, this law:
• increased the powers of the Bank of Portugal in regard of recovery measures;
• amended the rules applicable to deposit guarantee schemes;
• increased the number of possible resolution measures that may be determined by the Bank of Portugal, allowing, in particular, the segregation of assets to an asset management vehicle;
• allowed the Bank of Portugal to determine internal recapitalisation measures (bail in);
• established specific rules regarding financial support between companies pertaining to the same group; and
• imposed an evaluation of the assets and liabilities of the entities subject to resolution measures before the same are implemented; and
- e Decree-Law No. 20/2016, of 20 April, which sets forth that the shareholders’ general meetings of credit institutions whose articles of association establish voting caps must take place until 31 December 2016 to resolve on the maintenance or revocation of said voting caps (otherwise, said voting caps will be considered forfeited), and afterwards every five years.
ii Corporate laws
In February 2015, the legal regime governing the issuance of preferred shares and bonds contained in the PCCC was amended by Decree-Law No. 26/2015, of 6 February.
The main goal of these amendments is to decrease Portuguese companies’ dependence on banking financing and to stimulate the use of alternative financing structures, giving companies more freedom to issue hybrid capitalisation instruments.
Regarding preferred shares, which are construed by the PCCC as shares that do not entitle their holders to voting rights, but which grant them priority in receiving dividends, the main modifications brought by this Decree-Law are the following.
Nature of the priority dividend
The nature of the priority dividend was a controversial matter among Portuguese scholars, and this Decree-Law has clarified that, as a general rule, holders of preferred shares are entitled to participate in the company’s profits in the proportion of their shareholdings in the company’s share capital, but with the right to receive the amount corresponding to their priority dividends before profits are distributed to all shareholders. However, the new regime clarifies that it is possible to establish in the articles of association that the priority dividend has either an additional nature, in which case it is deducted from the distributable profits, which are subsequently distributed between all shareholders according to the percentages held by them in the company’s share capital; or an exclusive nature, in which case the holders of the preferred shares only receive the priority dividend (this second alternative is reserved for shares exclusively subscribed by qualified investors and that are not traded in a regulated market).
Minimum amount of the priority dividend
Before this new regime, the priority dividend had to correspond at least to 5 per cent of the nominal value of the respective shares. Currently, this threshold is 1 per cent of the preferred shares’ nominal value.
Lack of payment of the priority dividend
Before this new regime, priority dividends that were not fully paid in a given tax year had necessarily to be paid within the three subsequent tax years, provided that there were available profits. With the current regime, the articles of association may establish a longer period in which the priority dividends have to be paid, with no maximum number of years.
New exceptional regime
In addition to the third category of priority dividend referred to above, Decree-Law No. 26/2015 has introduced other important modifications in what concerns preferred shares exclusively subscribed by qualified investors and that are not traded in a regulated market, consisting of, inter alia, the possibility of the articles of association freely establishing the regime for the payment of the priority dividend that is not fully paid in a given tax year, as well as the loss of the priority dividend regarding the years where no profits are generated; allowing the conversion of the preferred shares into ordinary shares in the terms set forth in the issue conditions based on the deterioration of the company’s financial situation; and establishing a period of more than two (but up to five) tax years after which, if the priority dividend is not fully paid, the preferred shares temporarily entitle their holders to vote.
In a nutshell, this new regime establishes a more flexible regime for preferred shares (especially if the same are subscribed by qualified investors), aiming at attracting investors to finance Portuguese companies through non-traditional instruments.
Regarding the issuance of bonds, this Decree-Law has also introduced relevant modifications, which may be summarised as follows.
Financial autonomy ratio
Prior to this new regime, companies could only issue bonds in an amount below the double of their equity. Currently, companies that intend to issue bonds have to meet a financial autonomy ratio of at least 35 per cent after the issue of the bonds, which is calculated according to the formula indicated in this legal act and based on the company’s most recent balance sheet. There are, however, some exceptions to this legal requisite, which mainly correspond to the ones set forth in the previous regime, with the two following new exceptions: issues of bonds with nominal unitary value equal to or higher than €100,000, or whose subscription is made in minimum lots with a value equal to or higher than €100,000; and issues fully subscribed by qualified investors, provided that the same are not subsequently placed, directly or indirectly, with non-qualified investors.
Common representative of the bondholders
The regime applicable to the common representative of the bondholders was substantially modified, in particular, as regards the following aspects:
- a eligibility: financial intermediaries and the entities authorised to render representation services to investors in EU Member States may also be appointed as common representatives of bondholders;
- b independence: this Decree-Law establishes new circumstances that prevent the appointment of a certain entity as common representative of bondholders – for instance, the direct or indirect ownership of 2 per cent or more of the issuing company’s share capital, or the existence of a control or group relationship with the issuing company (regardless of the location of the registered office or the corporate nature of the common representative); and
- c responsibility: the limitation of the common representative’s liability is now expressly permitted, except in cases of wilful misconduct or gross negligence, and may not be inferior to the annual remuneration to which the common representative is entitled increased tenfold.
iii Private equity
The private equity legal regime has also been the object of a relevant reform recently, with a new regime enacted by Law No. 18/2015, of 4 March (which partially transposes Directives No. 2011/61/EU, of 8 June 2011, on Alternative Investment Funds Managers, and No. 2013/14/EU, of 21 May 2013), replacing the regime enacted in 2007.
The most relevant modifications introduced by this Law (which also regulates, for the first time, investment in social entrepreneurships and in specialised alternative investments) are, inter alia, the following.
One of the main modifications of this new regime is the creation of two different regimes applicable to private equity companies, depending on the value of the portfolios under their management, with a stricter regulatory regime applicable to entities that manage private equity funds whose portfolios’ value is higher than €100 million, when said portfolios include assets acquired with the use of leverage, or €500 million, when said portfolios do not include such assets and in relation to which there are no reimbursement rights that may be exercised within a period of five years as of the date of the initial investment. Private equity companies that do not fall under these thresholds may also be governed by this stricter regime, provided that they opt in.
The stricter regime applicable to private equity companies referred to in the preceding paragraph entails, in particular:
- a an authorisation from the CMVM prior to their incorporation (as opposed to a prior registration with the CMVM applicable for other private equity companies);
- b that all reasonable measures shall be taken and adequate procedures shall be implemented to identify, prevent, manage and monitor conflicts of interest that may be harmful to the interests of the private equity funds under their management and their investors; and
- c the obligation to functionally and hierarchically separate the functions of risk management from the operating units, including the portfolio management.
Private equity companies falling under the lighter regime set forth in this Law, but that manage portfolios whose net value exceeds €250 million, must incorporate an additional amount of equity that shall be equal to 0.02 per cent of the amount by which the portfolio’s net value exceeds €250 million.
The management regulations of private equity funds may establish the division of funds into several independent sub funds represented by one or more categories of investment units.
In line with this regime, the CMVM has also issued a new regulation governing these matters (Regulation No. 3/2015).
IV FOREIGN INVOLVEMENT IN M&A TRANSACTIONS9
i M&A transactions headed by strategic foreign investors
As referred to above, last year was a very active year for the Portuguese M&A market, to a large extent due to the role of foreign investors – especially Chinese, Angolan and US investors – who have been playing a key role in the revitalisation of the Portuguese economy.
This phenomenon is related not only to the pressure of Portuguese companies and the state to divest, which has created excellent opportunities for investors, but also to the fact that Portugal is regarded as a strategic hub between Europe and countries such as Angola, Brazil, Mozambique and other former Portuguese colonies.
Chinese investment has played a particularly relevant role in this (beginning with the acquisition, in 2011, by China Three Gorges Corporation from the state of a 21.35 per cent shareholding in EDP, the biggest electricity producer, distributor and trader in Portugal, for €2.7 billion, followed by the acquisition in 2012, by State Grid Corporation of China, of a 25 per cent shareholding in REN, the largest Portuguese energy grid company, for approximately €387 million) and reached €2 billion in 2014.10 More recently, at the beginning of 2014, Fosun International acquired from the state 80 per cent of Caixa Seguros, the largest Portuguese insurance group, including the companies Fidelidade and Multicare, for €1 billion, and in October 2014, Fidelidade acquired 96 per cent of Espírito Santo Saúde, one of the biggest health groups in Portugal, after this company’s successful initial public offering at the beginning of 2014 for more than €455 million.
The following are some of the most relevant deals featuring Chinese investors in the past year:
- a in September 2015, Haitong International Securities Group acquired BESI (the investment banking unit of the Espírito Santo Group and the largest Portuguese investment bank) from Novo Banco for approximately €380 million;
- b in August 2016, Hainan Airlines acquired 23.7 per cent of Azul, the Brazilian airline company that is part of the consortium that won the privatisation of TAP, for €450 million; in July 2016, Hainan Airlines had already paid €30 million for bonds convertible in TAP’s share capital;
- c in July 2016, AMC Theatres, a company pertaining to AMC Entertainment Holdings group, has agreed on the acquisition of Odeon-UCI Cinemas Group (the leading European cinema operator, which owns, inter alia, the cinemas in three shopping centres in Portugal), a deal valued at more than €1 billion; and
- d in July 2016, Chinese company Macau Legend Development signed a memorandum of understanding with the municipality of Setúbal foreseeing a global investment of €250 million in Setúbal, including the construction of a marina and a hotel.
Angolan investors have been very active in the Portuguese market. Key players include names such as Isabel dos Santos, daughter of the Angolan president and Africa’s richest woman, who already owns shareholdings in, for instance, GALP (the largest Portuguese oil and gas company), BPI (one of the biggest Portuguese private banks), NOS (one of the leading companies in the telecommunications sector, resulting from a merger between Optimus and ZON) and BIC (an Angolan private bank based in Portugal); and António Mosquito, who owns controlling shareholdings in Controlinveste (one of the largest Portuguese media groups) and Soares da Costa (in the construction sector). In March 2015, in the context of the takeover launched over BPI by Caixabank, Isabel dos Santos put a merger between BPI and Millenium BCP on the table, which would create the largest Portuguese bank, but that merger has not moved forward. In June 2015, she acquired 65 per cent of Efacec Power Solutions (the core company of Efacec Group, the largest Portuguese electric group) from Mello Family and Têxtil Manuel Gonçalves for approximately €200 million.
American funds have also been very active in the Portuguese market, and have participated in most of the bids for relevant transactions in the past year. In particular, in March 2015, Lone Star acquired Garvecat (owner of the Vilamoura resort in the Algarve) from its creditor, Caixa Catalunya, for €200 million. In May 2015, Blackstone acquired two shopping centres in Portugal: Fórum Montijo, with a gross area to let of 59,000m2 and Fórum Almada, with a gross area to let of 41,000m2, for an undisclosed amount. In November 2015, Lone Star sold three shopping centres to Deutsche Bank for approximately €200 million.
ii M&A transactions headed by national investors in key destinations
Angola has been one of the fundamental investment destinations for Portuguese companies, although not necessarily from an M&A perspective.
In fact, several Portuguese companies, from the most diverse business segments, have found in Angola the opportunity to diversify their risk and expand their activities during the Portuguese crisis. However, this trend is seeing a turnaround due to the current crisis in Angola.
V SIGNIFICANT TRANSACTIONS, KEY TRENDS AND HOT INDUSTRIES
The overcoming of the financial crisis and the restructurings made in compliance with the obligations undertaken in the memorandum of understanding have strongly influenced Portuguese M&A activity in the past year.
In addition to the transactions listed in the preceding section, the following are also some of the most important M&A deals that have taken place during this period.
i M&A transactions related to financial and insurance institutions
In the context of the requirements both at a local and at an EU level regarding ring-fencing and the separation of banks’ deposit-taking functions from more risky businesses, several banking groups have been selling non-core businesses. For example, in May 2015, Millenium BCP sold its asset management company, Millenium Gestão de Ativos, to Grupo Corretaje e Información Monetária y de Divisas, for €15.75 million; and in June 2015, Cofidis Participations (a French financial group) acquired Banif Mais (the specialised credit unit of Banif, a Portuguese bank) for €410 million.
In addition, two relevant deals were led by Spanish investors.
In December 2015, the Bank of Portugal applied a resolution measure to Banif, the seventh-largest Portuguese banking group, which entailed the acquisition of Banif by Santander Totta for €150 million, and the transfer of part of its assets and liabilities to Oitante, an asset management vehicle, which was made responsible for selling them. In this context, Oitante has already sold, inter alia, the insurance company Açoreana to Apollo Global Management (which already owned Tranquilidade) for €130 million, a transaction that was approved by the European Commission and ASF in June 2016.
In April 2016, Bankinter (a Spanish bank) acquired the retail and insurance business of Barclays Portugal for approximately €160 million.
In compliance with the calendar established in the financial assistance programme and with the main purpose of reducing the national budget deficit, the state has continued a wave of privatisations with the following deals:
- a in July 2015, the joint-venture SUMA, formed by Mota-Engil (the largest Portuguese construction company) and ACS (a Spanish construction company), completed the acquisition from the state of 95 per cent of EGF (a state-owned company engaged in the treatment and management of wastewater and solid urban waste) in the context of the privatisation of this company for approximately €150 million;
- b in June 2015, the consortium headed by David Neeleman and the Portuguese transportation group Barraqueiro won the privatisation of TAP (the largest Portuguese airline company) and signed the agreement for the acquisition, by the latter, of 61 per cent of TAP’s share capital for €10 million. This process was partially reverted after the new government took office in November 2015, and said consortium currently owns 45 per cent of TAP’s share capital. In addition, and as mentioned above, Hainan Airlines already has an indirect shareholding in TAP (through AZUL) and may acquire a direct shareholding in this company (through the conversion of the bonds acquired by it in July 2016);
- c after the award of the public transport services of Oporto and Lisbon to Transdev, Alsa and Avanza, these privatisations were also suspended in January 2016 by the new government; and
- d in January 2016, the privatisation of CP Carga (a railway freight transport operator) was completed through the sale of 95 per cent of the company’s share capital to MSC Rail (a subsidiary of the Swiss MSC Mediterranean Shipping Company).
iii M&A related to the collapse of Espírito Santo Group
Further to the fall of Espírito Santo Group and to the insolvency or pre-insolvency of some of the holdings of the Group, several deals took place as a way to divest non-core assets. In particular, the following transactions were carried out in this context: in January 2015, the Thai company Minor International acquired from Espírito Santo Group six hotels pertaining to the Tivoli hotel chain, four of which are in Portugal and two in Brazil, for €168.2 million; and the collapse of Espírito Santo Group also affected the announced merger between the telecommunications company Portugal Telecom and the Brazilian company Oi, mainly due to an investment of around €897 million made by Portugal Telecom in commercial paper issued by Rioforte. As a result, in June 2015, Altice completed the acquisition of Portugal Telecom’s Portuguese business in a deal worth €7.4 billion.
iv Wind sector
The wind sector has been particularly active, with the transfer of some of the biggest wind asset portfolios, including the sale of Iberwind to the Chinese group Cheung Kong for €1 billion, the sale of Finerge to First State for €900 million and the sale of a stake in EDF Energies Nouvelles’ wind business in Portugal to Lancashire County Pension Fund.
v Other relevant M&A deals
In compliance with the condition imposed by the antitrust authorities for the acquisition of Portugal Telecom, in January 2016, Altice sold the telecommunication companies Cabovisão and Oni to Apax França.
In February 2016, Israel-based Miya Water Holdings acquired from Mota-Engil Ambiente e Serviços 50.06 per cent stake in Indaqua, a company engaged in the management of concessions for water collection and treatment, residual water transport and distribution, collection and treatment, for €60 million.
Several real estate deals took place, in all segments, with some of the highest levels of activity ever.
VI FINANCING OF M&A: MAIN SOURCES AND DEVELOPMENTS
As a result of the financial crisis, and of the considerable decline of leveraged loan transactions and longer-term financings by bank syndicates, Portuguese companies have resorted to alternative sources of financing to support both their M&A investments and their current businesses. In particular, the issuance of corporate bonds (including high-yield bonds), as well as factoring and financial leases, have become more and more common.
The bank restructurings in Portugal have also opened a window of opportunity for an influx of alternative financing to traditional banking, notably through hedge funds, private equity and capital venture operations.
In particular, private equity funds, both local players and some of the major international private equity funds, have been quite active in Portugal seeking to turn the recession into an advantage for specific investment transactions.
Additionally, a shift from Portuguese-style (short-form) documentation to LMA-based documentation governed by Portuguese law is a new trend noted in the banking sector, triggered by the risk aversion of Portuguese banks.
Currently, and in line with the revitalisation of the Portuguese market, banks are more willing to finance companies, both local and foreign investors (even though most foreign players obtain financing abroad). This contrasts with the situation seen until recently, where companies felt the need to go to foreign markets to obtain financing.
VII EMPLOYMENT LAW
No significant developments that had an impact on M&A activity occurred in the past 12 months.
VIII TAX LAW
No significant developments that had an impact on M&A activity occurred in the past 12 months.
It should be noted, however, that the conditions for the qualification of the relevant shareholding under the participation exemption regime were changed as of January 2016 as follows: the minimum percentage of participation was increased from 5 to 10 per cent, but, in turn, the minimum holding period required was decreased from 24 to 12 months prior to the distribution of dividends or the disposal of the relevant participation.
IX COMPETITION LAW
Even though no relevant modifications to the merger control legal framework were registered in the last year (the Portuguese merger control framework was further aligned with the EU merger control framework with the entry into force of the new Competition Act in 2012, which has remained unaltered since), the simplified filing form and pre-notification contacts have been increasingly used, enabling a swifter assessment and earlier decisions regarding uncomplicated matters.
To increase transparency, at the end of each year, the Portuguese Competition Authority (PCA) publishes its strategic priorities regarding competition policy for the following year on its website. According to a statement issued by the PCA, its priorities for 2016 are the following:11
- a protecting and promoting competition in the Portuguese economy;
- b strengthening its presence in the relevant international fora;
- c increasing personnel and infrastructure efficiency;
- d diversifying resources and maximising their use;
- e ensuring fast and technically accurate decisions; and
- f providing public services of excellence.
In line with this set of priorities, the PCA continues to actively pursue its goal of protecting and promoting competition in the Portuguese economy. It is becoming more dynamic, and has invested in its technical capacity, having reorganised its antitrust division.
With regard to merger control, the PCA is expected to continue to promote the use of the simplified filing form, as well as pre-notification contacts, in order to deliver swifter decisions and enhance transparency in the market. Moreover, it seems that the PCA’s merger control decisions are increasingly subject to judicial review. In 2015, the Portuguese Competition, Regulation and Supervision Court rejected, on one hand, the appeal by Media, Zon Optimus and Portugal Telecom related to the PCA’s decision to initiate an in-depth investigation of this concentration and, on the other, another claim by these undertakings alleging that the concentration had been tacitly approved.12
Again in 2015, the Portuguese Competition, Regulation and Supervision Court confirmed the PCA’s decision in Arena Atlântida/Pavilhão Atlântico*Atlântico.13 Moreover, the PCA’s clearance, after an in-depth investigation, of the SUMA/EGF concentration (referred to above), is currently being disputed in the courts. So far, the Portuguese Competition, Regulation and Supervision Court has already rejected, in two separate proceedings, the adoption of interim measures to temporarily suspend the effects of the decision.14
Additionally, in 2016, the PCA is expected to promote advocacy activities in order to enhance the transparency of its actions and raise awareness of the advantages of effective competition for the Portuguese economy.
Portuguese M&A activity is expected to continue at a good pace in the upcoming months.
The continuing improvement of the Portuguese economy, the ring-fencing process and restructuring of local players, the increasing access to financing and the sustained interest of foreign investors, including major international investment funds, in Portugal, point to the maintenance of the levels of activity in the M&A sector in Portugal.
Some interesting transactions have already been announced for the short term. For instance, a decision on the sale of Novo Banco is expected in the upcoming months. Apollo and Centerbridge, Lone Star, BPI and BCP were announced as having presented binding offers. Recently, Fosun showed its interest in acquiring up to 30 per cent of BCP, the biggest Portuguese private bank. This acquisition would start with the subscription of 16.7 per cent of BCP’s share capital in a share capital increase to be fully subscribed by Fosun. Caixabank’s takeover over BPI will continue to be discussed. Other relevant deals are expected to be completed in the second half of 2016, including three deals in the motorway sector, specifically, the sale of Norscut, held by Sonae Capital, to Meridian Infrastructure Europe, the sale of a 51 per cent stake in Norte Litoral, held by Cintra, to DIF Infrastructure and the sale, announced in August 2016, by Ascendi, a company held by Mota Engil and Novo Banco, of several motorway concessionaires, to Ardian Infrastracture for €600 million (which may accrue €53 million, through a price adjustment mechanism). Galp is also expected to sell its natural gas distribution business to Marubeni.
1 Francisco Brito e Abreu is a partner and Joana Torres Ereio is a senior associate at Uría Menéndez – Proença de Carvalho.
2 Information available on the Portuguese Statistics Institute website: www.ine.pt/xportal/xmain?xpid=INE&xpgid=ine_pesquisa&frm_accao=PESQUISAR&frm_show_page_num=1&frm_modo
3 Information available on the Portuguese Statistics Institute website: www.ine.pt/xportal/xmain?xpid=INE&xpgid=ine_destaques&DESTAQUESdest_boui=224623063&DESTAQUESmodo=2.
4 According to the 2015 annual report released by Transactional Track Record and Intralinks in January 2016: www.ttrecord.com/pt/publicacoes/relatorio-mensal-peninsula-iberica/Mercado-Iberico-Anual-2015/1558.
5 Information available at www.cbre.pt/pt_pt/news_events/Publications/Publica%C3%A7%C3%B5es%20-%20Content/Publica%C3%A7%C3%B5es%20-%20Title/Portugal%20-%20An%C3%A1lise%20do%20Mercado%20Imobili%C3%A1rio%20%20-%202%C2%BA%20Semestre%202015.pdf.
6 Information available at www.publico.pt/economia/noticia/fundos-revitalizar-investiram-153-milhoes-em-49-empresas-1676669.
7 Listed companies are overseen by the Portuguese Securities Market Commission (CMVM).
8 In particular, Decree-Law No. 298/92, of 31 December, as amended, governs credit institutions and financial entities, which are supervised by the Bank of Portugal, and Decree-Law No. 94-B/98, of 17 April, as amended, governs the activity of insurance companies, which are supervised by the Portuguese Insurance and Pension Funds Authority (ASF).
9 All amounts indicated for the transactions indicated below result from publicly available sources.
10 Information available at www.publico.pt/economia/noticia/portugal-foi-o-pais-da-ue-com-maior-peso-de-investimento-chines-em-2014-1693637.
11 Available at www.concorrencia.pt/vPT/A_AdC/Instrumentos_de_gestao/Prioridades/Documents/AdC_Prioridades_2016.pdf.
12 Press release available at www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Paginas/Comunicado_AdC_201502.aspx?lst=1&Cat=2015.
13 Court decision available at www.concorrencia.pt/vPT/Praticas_Proibidas/Decisoes_Judiciais/contraordenacionais/Documents/AAE_1_13_TCRS1jul2015.pdf.
14 Press release available at www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Paginas/Comunicado_AdC_201527.aspx?lst=1&Cat=2015.