Portugal

The most common profit organizational forms utilized in Portugal are the Limited Liability Company by Quotas, locally called “Sociedade por Quotas” (“LDA”) and the Limited Liability Joint Stock Company, locally called “Sociedade Anónima” (“S.A.”). These are well known and traditional commercial companies.

• The Limited Liability Company by Quotas (“Sociedades por Quotas”), is the most widely used type of company, due to its less complex administrative and supervisory structure. This has consistently been the investment vehicle used in Portugal for small family businesses but is also be used by corporate investors. Quota-holders are jointly and severally liable up to the limit of the entire quota-capital.
• The Limited Liability Joint Stock Company (“Sociedades Anónimas”) is more commonly adopted by large Enterprises and is essentially characterized by having a more complex governance structure. Its capital is divided into shares and the shareholders’ liability for the company’s debts is limited to the amount of their investment represented by the number of shares subscribed.

a. Normally, an SA company. More specifically, Law no. 18/2015 of 4 March, transposed to Portugal the EU Alternative Investment Fund Manager Directive (2011/61) which regulates venture social Entrepreneurship companies. In November 2018, the first Portuguese venture company of social entrepreneurship under the format of an SA company and the first social entrepreneurship fund were registered by the Securities Regulatory Authority (CMVM - Comissão do Mercado de Valores Mobiliários).

Investing in social entrepreneurship is materialized by applying capital flows for a limited period, in entities that develop adequate and quantifiable solutions to social problems. Any investor can invest in social enterprises and social entrepreneurship funds but the amounts they can invest in, depend on whether they are a professional investor or not. As confirmed by CMVM, the possibility of allowing retail investors to invest in this type of fund, is a specifically Portuguese solution, in view of the identification of very intense requests by civil society, national entrepreneurs and third sector entities. It also seeks to professionalize and increase transparency in the allocation and management of financial flows, from any investor, to social objectives.

b. Venture companies and funds. See above 2.a.

Company law establishes that the board of directors or managers have a loyalty duty to care for the long-term value of the shareholders at the same time balancing the interest of other relevant groups as employees, clients, and creditors to attain a sustainable company.

Moreover, in the last decade, social and corporate responsibility awareness and programs have become increasingly part of companies’ scopes and managerial reports. It emerged as an autonomous management discipline at the university level too.

Yes, solidarity economy practices display a rich tradition of organized forms in Portugal, although they are not directly referred to as Social Enterprises. Typical organizational forms that traditionally integrate the social economy are charitable entities, cooperatives, mutual societies, associations, and foundations. The Social Enterprise concept term - other than venture companies - is used in a comprehensive sense as including the listed entities in the general framework law of the Social Economy (Law 30/2013 of May 8, see point 4 below). These traditionally do not operate through profit organizational forms although, they can fund their activity by participating in profit organizational forms (companies). Profit structures used as a Social Enterprise must allocate the profit to the activity and be registered on the social economy organizations' government database. Portugal enacted a social economy framework law, Law 30/2013 of May 8, (Lei de Bases da Economia Social) which launches the guidelines of the social economy as safeguarded by constitutional law. The law identifies the traditional existing organizational forms that integrate the social economy.

a. The following existing organizational legal forms are referred to in the social economy framework law:

1. Cooperatives: Nonprofit entities created for the cooperation and mutual assistance of their members, their scope is to satisfy the economic, social, or cultural needs and aspirations of the members. It has a long tradition in Portugal.
2. Mutual associations: Mutual associations are private social protection systems to pursue purposes of social security and health, as well as other purposes of social protection and promotion of quality of life in the interest of its members and their families. They are subject to the regulatory authority of the Insurance and Pension Funds Supervisory Authority (Autoridade de Supervisão de Seguros e Fundos de Pensões). 6
3. Misericórdias: These are historical catholic charity entities with more than 500 years of existence and spread within a wide range of municipalities of the country that respond to several social needs. These are regulated as a type of Social Solidarity Private Entities described below.
4. Foundations: Created to manage assets irrevocably allocated to the pursuit of a durable and socially relevant purpose, whether religious, moral, cultural, or welfare. They have a certain importance in the Portuguese cultural and social sector.
5. Private Institution of Social Solidarity: The widespread social solidarity private entities known under the abbreviation of “IPSS” (Instituições Particulares de Solidariedade Social). These are non-profit institutions, created by private initiatives and recognized by the State. They are the prototype of Social economy entities in Portugal representing more than 90% of the total social economy entities.
6. Other associations with philanthropic purposes acting in the cultural, recreational, sports and local development sectors.
7. Any entity having legal personality, guided by the principles of the Social Economy. It was avoided in the wording of the law the concept of business Social Enterprises, i.e. for-profit Social Enterprises.

b. These entities share, although with diverse rules, a special beneficial tax regime, not available for instance to standard associations. Moreover, some of these entities benefit from government recognitions that assign them to the major group categories for social enterprises (please see I.4.a. above) with access to public funding.

c. Tax benefits on the contributions or donations. In the case of cooperatives certain income return on the investment.

d. These organizational forms cannot have a profit scope. Moreover, their general organizational rules sometimes challenge their autonomy from the State. The de facto framework leads frequently to state dependency in terms of models of financial management and of the definition and regulation and 7 reporting of activities, mandatory recipients of the services, and fields of social intervention.

e. In timing, yes, for some of the forms listed above (see I. 4.a. above) since these involve Government recognition applications, clarifications and delays (e.g. IPSS).

f. These entities are very relevant, profuse, and well know. Especially, in the case of IPPS, the Social Solidarity Private Entities, with high social visibility. Yet, their share in the country's economy is not at the level of other EU countries. Notwithstanding it is recognized their crucial role in the social cohesion and social response in a country that has a high level of public spending.

In Portugal, the question is the opposite since the Social entities are typically Nonprofit. The concept of a formal Social Enterprise with a business scope is being introduced recently and is debatable in the social sector.

a. Yes, depending on the special status that the specific Social Enterprise assumes under the law (please see question I.4 above). Normally differences relate to the public interest recognition of Social Enterprises and a wider range of tax advantages for Social Enterprises. In any case, there is not just one model of Social Enterprises and therefore differences should be looked at on a case by case basis.

b. Yes, Nonprofit with public utility status benefit from tax exemptions connected with the activity i.e., the pursuit of statutory objectives; However they may be under state dependency in terms of models of financial management and of the definition and regulation of activities, identification of recipients of the services and modeling the social intervention. Some instruments were created, like venture funds, to implement new ways of funding the Social economy that does not apply to standard Nonprofits.

c. In strict terms the answer is no. However, it has been recently incentivized the use of collateral for profit structures (companies) generating profit for the carrying of the mission of the Nonprofit related Social Enterprise.

d. Almost full up till recently. In Portugal, the concept of Social Enterprises is linked with the Social Economy, and this only addresses and regulates entities that assume a Nonprofit form. The strictu sensus concept of Social Enterprise faces 8 challenges within the Social Economy world preventing profit drive within a sensitive sphere of individuals and communities essential and social needs. Challenging relationship between the so-called entrepreneurial perspective on social enterprises, and the pure perspective of solidarity economy. However, Social entrepreneurs are pointing new ways to obtain social transformation and business innovation, creating ventures that align both profit and impact in areas where government, pure commercial companies and other social entities fail.

Yes, cooperatives are active and their legal status is also laid down in the Social Economy Statute (please see I.4. above). It is deemed the closest form that exists in Portugal to the strictu sensu concept of Social Enterprise due to its combination of profit activity and solidarity scope and methodology. The legal regime was adjusted in 2015, notably as related to its economic regime, with the introduction of the recent Cooperative Code. The law preserved the cooperative traditional mutualist nature vis-a-vis the principles of democratic governance, free adhesion, economical participation of the members and autonomy and freedom of the cooperative. To solve the recurrent financing problems of the cooperative model, the new legal regime opened the share capital to external investors who cooperate with the scope of the cooperative by way of the financial contribution. However, to avoid an excessive interference of such investors, the legal regime is still rather strict as relate to the external investor’s statutory role. In fact, the profit scope is always deemed secondary as related to the mutualist scope. Therefore, the cooperative is controlled by the cooperative members and not by the share capital holders (external investors). The traditional concept of the cooperative surplus - defined as an amount that members pay to the cooperative in excess, or that the cooperative owes to the members, as a return for member participation in the cooperative activity – is the amount that can be distributed among the cooperators.

Yes. However, there is not a sole model of reporting requirements and government recipients bodies since these vary according to the nature and supervision authority to which the reporting applies. Moreover, the reporting requirements are not clearly determined under the law

Since the concept of Social Enterprise is not unequivocal no jurisprudence exists in such specific terms. However, the courts have decided many cases related to solidarity entities notable in the questions related to CIT (Corporate Income Tax) exemption referring to the cases where the exemption is automatic, i.e., does not require prior recognition from the State Authorities.

Yes, disclosure obligations under EU legislation including Regulation (EU) 2019/2088 of the European Parliament and of the council of 27 November 2019 entering into force from March 2021. This lays down rules for financial market participants and financial advisers on transparency with regard to the integration of sustainability risks and the consideration of adverse sustainability impacts in their processes and the provision of sustainability-related information with respect to financial products.

No.

Not specifically. 

Yes.

a. Disclosure of information necessary to inform end investors about the sustainabilityâ€related impact of their investments in financial products with environmental or social characteristics or financial products which pursue sustainability objectives. (please see question I.9 above).

b. N/A

c. R&D, cultural impact, scientific innovation, environmental effects.

The most common funding for Social Enterprises is through:

1. Private donations.
2. Public, governmental and European funds;
3. Contractual arrangements with the State;
4. Specialized bank loans
5. Crowdfunding.

Investment in social entrepreneurship, as an alternative finance model, is rather recent but is becoming interesting for investors. Private financing initiatives by acquiring shares in venture social enterprises or acquiring investment units in social entrepreneurship funds are still discreet.

Several government programs are directed at financing social enterprising. Listed below are examples of some important funding programs, mostly through grants, that are available for social enterprises:

1. Empowerment to the social investment (Capacitação para o Investimento Social): A non-repayable fixed amount of up to € 50.000 is allocated to the financing of a Training Plan for the development of organizational and management skills of the teams involved in the implementation of social innovation projects;
2. Partnerships for impact (Parcerias para o Impacto): A non-repayable amount is attributed to a Social Enterprise, corresponding to 70% of its net financing needs (over € 50.000), is provided as long as the remaining 30% is provided by one or more social investors, public or private;
3. Social Impact Bonds: (Títulos de Impacto Social): Once one or more private entities (financed by one or more social investors) implement a social enterprising project, proposing to achieve certain measurable social outcomes, whose indicators and targets must be validated in advance by the public entity responsible for sectoral policy. The social outcomes to be achieved, as well as their indicators and respective targets, are previously defined and contracted upon application. If these results have been achieved, social investors are fully reimbursed for the amount invested to achieve them.
4. Fund for the Social Innovation (Fundo para a Inovação Social): Its regulatory framework does not include a definition of Social Enterprise and remains mainly oriented towards financing social 11 innovation initiatives within the social economy sector. It is a Government managed fund that has two types of financial instruments intervention available for Social Enterprises.

a. The regulatory regime and compliance are rather complicated and entities operating in the Social Economy struggle to obtain and solve reporting divergences. The downsize of such funding is less autonomy from the State and more reporting obligations. Most of the programs relate to EU funds. There are several specific programs for government support and in some cases, for the purposes of obtaining such funds, Social Enterprises must obtain State recognition that they qualify as Innovation Initiatives and Social Entrepreneurship status. Such certification is discretionarily made by the government department that manages such EU programs.

b. Yes, some of the mentioned programs are exclusively available for entities that qualify as Social Economy entities.

Yes, the Social Entrepreneurship venture companies (Sociedades de empreendorismo social) (see I.2.a above). 

They are disclosing it.

They are starting to be relevant.

No.

Yes, crowdfunding is regulated under the Crowdfunding Statue (Law number 102/2015 of August, 24). The legislation regulates Crowdfunding online platforms facilitating the provide services of financing and equity models enabling the swift funding process.

Yes, the tax regime is one of the most used instruments of promoting Social Enterprises in Portugal.

a. Yes, the tax regime is one of the most used instruments of promoting Social Enterprises in Portugal.

Tax patronage regime on donations

Essentially, the Portuguese patronage regime, provided for in the Tax Benefits Statute, establish that donations granted to the non profit social enterprises may be considered as cost or net loss, and may be calculated from 120% to 150% of its value, according to the nature of the entity benefiting from the donation to the maximum threshold of 8/1000 of the entity‘s turnover or of the services provided in accordance with the legislation.

More specifically donations to the following entities are deductible to the taxable base:

1. Private foundations that have a predominantly social purpose;
2. Social Solidarity Private Entity, entities with Public Utility Status, NGOs, etc;
3. Cultural entities (e.g. museums, libraries, NGOs, artistic schools, etc.) which promote cultural and environmental care or education; public or private foundations, cultural cooperatives, cultural centers, and other non-profit organizations that promote culture (music, theatre, ballet, etc.);
4. R&D entities (foundations, associations, public institutes, universities, research centers, companies) that carry out significant research and contribute to development. For individual donors, the donation is deductible for personal income tax purposes, up to a maximum of 25% up to 15% of the tax payable.

For individual donors, the donation is deductible for personal income tax purposes, up to a maximum of 25% up to 15% of the tax payable.

Corporate tax and VAT exemptions

Nonprofit organizations benefit from exemptions, in terms of corporate tax and VAT, according to the objectives pursued as long as certain legal conditions are met.

The following entities are exempt from Corporate Income Tax:

1. Public utility administrative entities;
2. IPSS and legally equivalent institutions;
3. Charitable, care, welfare, social solidarity, environmental protection and agri-food inter-association public utility entities which exclusively or predominantly pursue scientific or cultural activities;
4. Associations established for the pursuit of cultural, recreational, and sporting activities.

Other exemptions:

Moreover, the following main groups of nonprofit social enterprises benefit from the following indirect tax regime:

1. Social Solidarity Private Entities (IPSS): Municipal Real Estate Tax exemption on the real estate allocated to the activity, Real Estate Transfer Tax exemption, Stamp Duty full exemption. Please note that every Social Solidarity Private Entity is also automatically recognized as benefiting from the Public Utility Status with the inherent tax benefits;
2. Public Utility Status (Estatuto de Utilidade Pública: Municipal Real Estate Tax exemption (regarding real estate connected directly to the pursuit of its objectives), Real Estate Transaction Tax exemption (regarding real estate connected directly to the pursuit of its objectives); Stamp Duty full exemption.
3. Mercies associations [Misericórdias] are fully exempt from Municipal Real Estate Tax.

As for VAT (Value Added Tax) most of the activities of Social Enterprises are exempt from tax, but this means that they are also not entitled to deduct input 14 VAT, except in particular cases like for VAT incurred in the works carried in the head office of the Social Enterprise.

b. Yes, many of the benefits are subjective benefits and foreseen for their specific type of Nonprofit entity or for that status (e.g IPSS, Public utility).

c. The regime is complex and fragmented into different laws and based on the different type of entities. Corporate income tax exemption applicable to the general Social Enterprises do not cover income derived from the exercise of commercial or industrial activities undertaken outside the scope of the purposes set out in the By - laws of the entities entitled to the exemption. Moreover, management or other members of statutory bodies of the entities cannot have an indirect or direct interest in the proceeds of the results of the entity. Any commercial activity results must be allocated to pursue the social scope.

No, donations given to for-profit enterprises if allowed (companies normally cannot donate since gracious acts are deemed against the for-profit scope except when such donations are deemed normal practices), are not deductible to the taxable basis under the so-called patronage regime. Tax benefits available for donors are limited to the non-profit sector.

Yes, they are spread in various laws. For instance, some of the entities are not subject to a 10% surtax on representation expenses which would be applicable to standard Corporate income taxpayers (companies).

No.

The Portuguese Government Council of Ministers Resolution number 30/2020 sets out the legal principles for the establishment of Technological Free Zones. It envisages a general and cross-sectoral framework for experimentation with innovative technologies setting out horizontally applicable principles, which are to be combined with specific sectoral strategic and more regulated sectors, such as the financial sector. Its impact on Social Enterprises is yet to be determined.

Several EU programs in various dominium including training are available. In any case, access to support services from the State is very poor.

Compliance reporting can be more burdensome to Social Enterprises under a funding dependence from the State.

Social Enterprises must deal with several State departments due to various areas of competence related to social entrepreneurship. The main list includes the following:

1. Ministry of Work, Solidarity and Social Security (Ministério do Trabalho, Solidariedade e Segurança Social);
2. Ministry of Economy (Ministério da Economia);
3. IEFP - Public Employment Service - Instituto de Emprego e Formação Profissional IEFP, provides training and integration into the labor market;
4. Institute for Social Entrepreneurship (Instituto de Empreendedorismo Social);
5. ISS - Social Security Services Institute (Instituto da Segurança Social) deals with many social economy entities statute and operations;
6. IAPMEI- Agency for Competitiveness and Innovation (Instituto de Apoio às Pequenas e Médias Empresas e à Inovação).

Other relevant bodies in the social area are:

1. CES - Constitutional forum for consultation and cooperation in the economic and social field (Conselho Económico e Social);
2. CNES - National Council for Social Economy (Conselho Nacional para a Economia Social).

No.

The process can be carried in one day. Depending on the type of entity the enterprise should assume, time-end filling fees can vary but the latter is not material. In Portugal, it is possible to form an enterprise such as an LDA or an Association within one day.

The main Government certification relates to the so-called public utility statute and the recognition as an IPSS. Moreover, the non-Governmental Organizations for Development statute is also dependent on recognition:

1. Public Utility Status (Estatuto de Utilidade Pública): A government certification provided to associations, foundations or cooperatives deemed to pursue the general interest, the national community interest or any regional interest, in cooperation with the Central Administration.
2. IPSS: The Social Solidarity Private Entities statute which automatically carries the recognition of the “Public Utility” Status;
3. Non-Governmental Organizations for Development (Organizações não Governamentais de cooperação para o Desenvolvimento) – Domestic certification conferred to entities that design, implement and support social, cultural, environmental, civic and economic programs and projects, in particular through actions in developing countries (development cooperation, humanitarian assistance, emergency aid, protection and promotion of human rights).

Yes, there is a very good environment for entrepreneurship, and in the last decade, many startups have been set up and flourish in Portugal in various fields including technology innovation.

In our view, Portugal has the context for Social Enterprises to flourish.

Social and solidarity economy is much relevant in Portugal and in recent years it has assumed an increasing weight in the country's economy. The Social Economy entities' growth has been higher than the rest of the economy. in the same period and have been increasing the share on the country wages and total employment.

With the pandemic, the importance of the social and solidarity economy grew even more. The capacity to respond to the challenges of the pandemic has acted as a major positive fact to solve the health care issues. Besides, it was capable to interact with the public and private in a network achieving effective responses.

The lack of a clear legal status.

No.

It would be motivating to clarify the legal concept of for profit social enterprise. At a different level, in many ways, Social Enterprises carry activities of a social or public nature side by side with the State, as a proactive civil society requires, but with lesser legal certainty, many reporting burdens and administrative uncertainty conditions. Such entanglements should be reduced by way of a clearer regime and the improvement of communication flows with the State. In addition to current partnerships with the State, it should be recognized and preserved the advantages of effective autonomy of Social Enterprises from the State, profit and non profit, to enhance the envisaged social and environmental impact.

Moreover, the current tax benefits regime is fragmented into various laws and regimes, needing simplification.

The regime already addresses relevant actions under EU regulations.

No.