The Portuguese Constitutional Court, through its Decision no. 774/2019, whose publication took place on 27 January 2020, declared the rule contained in paragraph 2 of article 398 of the Portuguese Commercial Companies Code, approved by Decree-Law no. 262/86, of 2 September, to be unconstitutional, with general mandatory force, in the part in which it determines the termination of the employment agreement, signed less than a year ago by an employee who is designated as an member of the board of directors, of the employing commercial company, for violation of the provisions foreseen in paragraph d) of article 55 and in paragraph a) of paragraph 2 of article 57 of the Constitution of the Portuguese Republic, in the wording in force at the date the legal provision was issued (Constitutional Law no. 1/82, of 30 September). The Constitutional Decision also limited the effects of the abovementioned unconstitutionality so that such effects only take place after the publication of the Decision.
The unconstitutionality of the rule contained in paragraph 2 of article 398 of the Portuguese Commercial Companies Code had already been assessed and judged, in the context of concrete inspection of unconstitutionality, by the Portuguese Constitutional Court, on three separate occasions.
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Practice Area: Corporate and Employment.
