The COMI (Center Of Main Interest) in insolvency law in Portugal

Please note that, to the best of our knowledge, Art. 3 para 1 of the EIR has never been the subject of interpretation by the Portuguese Courts. In fact, although the aforementioned Article has been mentioned in some judgments, the range of its application has never been a matter of judicial discussion.

However, as it affects companies, a Portuguese scholar maintains that the presumption contained in Art. 3 para 1 of the EIR may only be rebutted when it is shown that the majority of the creditors was (or should have been) aware that the company is administered in another Member State. According to such reasoning, that may be, for instance, the case whenever (i) the company does not develop any economic activity in the State of the registered office and (ii) it has an especially significant connection with another State (Cfr. Lima Pinheiro, Luís, “O Regulamento Comunitário sobre Insolvência – Uma Introdução”, Almedina, Coimbra, 2007). As far as concerns individuals, the same scholar contends that the COMI of independent professionals should correspond to the place where the latter performs their main activity. The COMI of the other individuals should correspond to the place of usual residence (Cfr. Lima Pinheiro, Luís, op. cit.).

Some Portuguese judgments stress the importance of avoiding the possibility of transferring assets or judicial proceedings from one Member State to another in order to obtain a more favourable legal position. However, such jurisprudence merely refers to Recital 4 of the EIR (which contains that principle) without any kind of analysis or discussion.