[BANKRUPTCY, INSOLVENCY & REHABILITATION PROCEEDINGS IN PORTUGAL] 68
concluded with the judge, who decides on the payments that he considers justified. III. STATUTORY RESTRUCTING, REHABILITATIONS AND REORGANISATIONS The PER (“ Processo Especial de Revitalização ”) is a special revitalisation proceeding for companies facing a situation of imminent insolvency or economic distress and is not to be used as a substitute for insolvency proceedings. The PER is initiated by a written request subscribed to by the debtor and creditors representing at least 10% of non-subordinated credits (or a lower percentage in certain limited cases), which includes the following: • A declaration by the company of its ability to recover; • A joint declaration of the debtor and the abovementioned percentage of creditors expressing the will to engage in negotiations; • A declaration by a certified accountant attesting that the company is not insolvent; • Auxiliary documents required in insolvency proceedings (e.g., a list of creditors, pending lawsuits, shareholders, assets and employees; a description of the debtor’s activities; and annual accounts, management and audit reports and legal certification for the last three years); • A proposal of recovery plan, with a description of the company’s situation in terms of assets, financing and revenue cash flows, and • Introduced by the Law No. 9/2022, 11 th January, in order to ensure a more equitable treatment of creditors on whom the effective restructuring of companies will depend, companies other than micro, small and medium- sized enterprises will be required to present, with the respective request for submission to the PER, a proposal for the classification of creditors affected by the recovery plan in distinct categories, according to the nature of
the respective credits, into guaranteed, privileged, common and subordinated creditors and, among these, reflecting the universe of creditors of the company according to the existence of sufficient common interests, namely: i. Workers, without distinction of the type of contract; ii. Shareholders; iii. Bank entities that have financed the company; iv. Suppliers of goods and service providers; v. Public creditors. Upon the receipt of said request, the judge appoints a provisory judicial administrator (“PA”). The court’s order is published, formally initiating the PER. Subsequently, within 20 days of said publication, the creditors make their credit claims to the PA. Within five days, the PA drafts a provisional creditors list, which is published and may be contested in court on the next five business days. Oppositions are decided by the court within the same term, and the definitive list is defined. Once the definitive list is determined, negotiations between creditors and the debtor shall start and be concluded within a term of two months, which may be extended once for one month. Being a dejudicialized proceeding, negotiations are organised and supervised by the PA. The court’s main role is to decide on the oppositions to the creditors list and to ratify (or refuse to ratify) the recovery plan approved by creditors. Non-ratification occurs if there is any infringement of non-neglectable procedural rules or infringement of material rules (notably, creditors shall be treated equally and creditors’ positions shall not, without their consent, be less favourable to the positions they would have in a
ILN Restructuring & Insolvency Group – Bankruptcy, Insolvency & Rehabilitation Series
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