Trends and climate
Are there plans for any changes to the law in this area?
There are no formal plans to amend any of the anti-corruption regulations in force. However, the Portuguese Parliament is discussing measures to strengthen transparency in the exercise of public functions.
Within the commission created for that specific purpose there have been important discussions that led to the presentation of:
- the Code of Conduct for the Members of the Assembly of the Republic (MPs);
- the Mediation Professional Activity Regime in the Representation of Interests;
- the Registry Regime for Private Entities that Represent Interests; and
- an Entity for Transparency in the Exercise of Public Functions.
The most significant new features are:
- new rules governing the lobbying of MPs;
- the introduction of incompatibility between the functions of and impediments for MPs, lawyers, politicians and consultants; and
- the introduction of the requirement to file income declarations also for magistrates, mayors and judges of the Constitutional Court.
In addition, the wealth of politicians is coming under scrutiny. Politicians can be punishable by prison sentences if there are discrepancies between the values presented to the tax authorities and their true income and assets. Such income is subject to a tax increase. The intention is to criminalise unjustified enrichment, although the Constitutional Court has already rejected this motion twice.
Considering the complexity of the matters at stake, the bills are not expected to be finalised soon.
Have there been any recent changes in the enforcement of anti-corruption regulations?
The last major changes to anti-corruption regulations occurred in 2015 through the enactment of Law 30/2015 (amending the Portuguese Criminal Code), as well as the amendment of:
- Law 34/87 (on corruption relating to political office holders and high-ranking public officials);
- Law 20/2008 (on corruption in international commerce and the private sector);
- Law 50/2007 (on corruption in sports); and
- Law 19/2008 (on anti-corruption measures).
These changes aimed to implement the recommendations made to Portugal by the Council of Europe Group of States against Corruption, the United Nations and the Organisation for Economic Cooperation and Development.
In addition, in 2016 the Portuguese government’s Code of Conduct was approved and came into effect, stating that members of the government and cabinet members may not receive any benefits, gifts and entertainment that are liable to impair their impartiality or integrity. With the exception of some situations identified in the code, any benefits valued at over €150 are presumed to be liable to compromise the recipient’s impartiality and integrity, and must therefore be rejected.
In 2017, Law 50/2007 on corruption in sports was amended once again in order to increase penalties and establish criminal liability for unsporting betting and undue receipt of advantage. Law 5/2002, on its hand, was also amended to allow the enforcement of special rules for the collection of evidence, breach of professional secrecy and seizure of property regarding bribery-related crimes in the public and private sector, as well as in the context of international commerce and sports.
Transposing the Fourth Anti-money Laundering Directive, Law 83/2017 was also approved, amending the crime of money laundering and adopting a set of preventive and repressive measures in view of countering the laundering of illegitimate benefits and financing of terrorism.
Lastly, Law 89/2017 was enacted, establishing a central registry of ultimate beneficial owners, requiring companies to record and publicly disclose their individual ultimate beneficial owners. This diploma was later regulated by Ordinance 233/2018, which includes provisions on means of authentication on the registry, availability and access to the information and deadlines for the initial declaration.
Which authorities are responsible for investigating bribery and corruption in your jurisdiction?
In Portugal, bribery and corruption are investigated by the Public Prosecutor’s Office, assisted by the judiciary police – specifically, the National Unity Against Corruption.
What are the key legislative and regulatory provisions relating to bribery and corruption in your jurisdiction?
First and foremost, the Portuguese Criminal Code sets out various forms of corruption offences regarding public officials – namely:
- bribery for either unlawful and lawful conducts;
- undue receipt of advantage;
- influence peddling;
- bribery of voters; and
- misappropriation of public funds and public property.
In addition, specific anti-corruption laws exist in relation to, among others:
- acts of bribery directed at political office holders and high-ranking public officials (Law 34/87);
- bribery in international commerce and in the private sector (Law 20/2008); and
- bribery in sports (Law 50/2007).
What international anti-corruption conventions apply in your jurisdiction?
Portugal is a signatory of the following international conventions:
- the Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
- the Civil Law Convention on Corruption;
- the Treaty of the European Union on the Fight against Corruption involving Officials of the European Communities or Officials of EU Member States;
- the Criminal Law Convention on Corruption and the Additional Protocol to the Criminal Law Convention on Corruption;
- the EU Convention on the Protection of the Financial Interests of the Communities and Protocols;
- the UN Convention against Transnational Organised Crime; and
- the UN Convention against Corruption.
Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Under Portuguese law, the following acts (whether performed directly or on behalf of a third party) are both punishable as criminal offences:
- offering or promising to offer a bribe in order to obtain a lawful or unlawful advantage (active bribery); and
- receiving a bribe or the promise of a bribe (passive bribery).
The Portuguese Criminal Code applies only to acts of bribery directed at public officials, which includes civil servants, public agents and all individuals who are called upon to perform or participate in activities relating to public, administrative or judicial affairs, or that belong to public utility organisations, including:
- managers, members of corporate bodies and employees of state or state-held companies, as well as public concessionaires;
- magistrates, agents and EU office holders;
- public officials of other EU member states;
- those who perform their duties in any international public organisation of which Portugal is part of; and
- those who perform their duties in extrajudicial conflict resolution proceedings.
Political office holders (ie, President of the Republic and President of the Portuguese Parliament, members of the Portuguese Parliament or of the EU Parliament, members of the government or of a representative body of local government), as well as high public office holders (eg, public managers, holders of decision-making bodies of semi-public companies, whenever appointed by the government, members of executive bodies of companies of local enterprise sectors, members of governing bodies of public institutes, members of independent public entities and holders of first-degree high executive bodies or equivalent) are not included in this definition, but acts of bribery directed at them are still punishable as criminal offences, as per Law 34/87.
Portuguese law also sets out the crime of bribery in the private sector, which can be committed by private-sector employees in breach of their professional duties or by someone who offers or promises to offer them any undue advantages for such purposes. In addition, bribery harmful to international commerce may be committed by anyone who offers or promises to offer any undue advantages to a Portuguese national or a foreign public official or a public official of an international organisation, as well as a political office holder, whether Portuguese or otherwise, with the purpose of obtaining or retaining a business, contract or some undue benefit in the course of international commerce.
Bribery in sports may be committed by any sports agent such as sports managers, coaches, trainers, fitness coaches, doctors and referees, as well as public limited sports companies, sports associations, clubs, federations or professional leagues, or by anyone who offers or promises to offer these people any undue advantage. In this case, however, the bribe must be directed at causing the sports agent to perform an act or omission that is aimed at misrepresenting or distorting the result of a sporting competition, although the recent amendment to the legal framework against anti-sportsmanship behaviours allows for the inclusion of undue receipt of advantage, which lessens the burden of proof.
‘Undue receipt of advantage’ relates to soliciting or accepting any undue advantages, with the only exception being the social adequacy or compliance with social customs of the latter.
Nowadays, the proof of a direct link between the acceptance of the advantage and the lawful or unlawful act as performed by the recipient is no longer necessary. If the act takes place after receiving the advantage, bribery is committed. If the act bears no relationship whatsoever with the act of receiving the advantage, bribery is still committed. Even if no acts or intentions of compelling them are determined or even determinable, bribery may still be committed, albeit under the form of undue receipt of advantage.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
The law states that the only exception to the unlawfulness of the act of receiving or requesting an advantage resides in its social adequacy or compliance with social customs.
In accordance with Resolution 53/2016 of the Council of Ministers, which approved the government’s Code of Conduct, members of the government may not receive any gifts that may compromise their impartiality or integrity. Gifts (consumables or durable) valued at or above €150 are presumed to have this effect and must be rejected.
Members of the government and cabinet members must also not accept invitations or any other immaterial benefits that may affect their impartiality or integrity. Invitations or other benefits with an estimated value higher than €150 are presumed to affect the recipient’s impartiality and integrity, with the following exceptions:
- invitations or similar benefits pertaining to attendance of official ceremonies, conferences, congresses, seminars, exhibitions or other similar events, where they correspond to consolidated political and social customs, where there is a relevant public interest in said attendance or where the government officials are expressly invited in that capacity, therefore ensuring an official representation function that cannot be provided by third parties; and
- invitations or other similar benefits from foreign states, international organisations or other public entities, regarding participation in summits, ceremonies or reunions, either formal or informal, and if the government officials and the government cabinet officials are expressly and officially invited in that capacity.
What are the rules relating to facilitation payments?
All payments and benefits are deemed to be illegitimate irrespectively of their value, unless they are socially adequate or compliant with social customs.
Scope of liability
Can both individuals and companies be held liable under anti-corruption rules in your jurisdiction?
Yes, both individuals and companies can be held liable under anti-corruption rules in Portugal.
For companies to be held criminally liable, the offence must have been carried out either by someone who holds a position of leadership, acting under the company’s name and on its behalf (ie, members of its corporate bodies, legal representatives or individuals who hold control over the company’s activity), or by someone else who acts under their supervision, considering that a breach of supervision or control duties has occurred. However, if there is evidence that the individual in question acted against express orders or instructions, then the company’s liability may be excluded.
Can agents or facilitating parties be held liable for bribery offences and if so, under what circumstances?
The advantage or promise of advantage may be given or requested either directly by the agent or through an intermediary, acting on his or her behalf. For both agents and facilitating parties to be held liable, however, intent and acknowledgment of the act of bribery must be present.
Can foreign companies be prosecuted for corruption in your jurisdiction?
Foreign companies can be prosecuted for acts of corruption before the Portuguese courts insofar as at least one of the acts that constitute the criminal offence has been committed in the Portuguese territory.
Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
Yes, Law 19/2008 provides for some mechanisms aimed at protecting whistleblowers: the right to remain anonymous until the suspect is formally charged, the right to be transferred once the suspect is formally charged and the right to benefit from witness protection programmes.
Other than that, the Central Department for Investigation and Penal Action has also made available an online digital platform that allows for the filing of anonymous criminal complaints regarding suspects of bribery.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
The recipient of a bribe may be exempted from a penalty if:
- they report the crime within 30 days of committing it and always before the proceedings begin, and provided that they have voluntarily returned the offer that they had previously accepted (or its value); or
- before performing the act that they were supposed to carry out, they voluntarily renounce the offer or the promise that they had previously accepted (or its value).
With respect to active bribery, the perpetrator may be exempted from a penalty if, before the performance of the act, they withdraw the promise, refuse to make the offer or ask for its return.
Otherwise, the penalty may be specially mitigated if the perpetrator:
- provides effective assistance in gathering of decisive evidence for the purpose of identifying or catching other persons responsible, up until the end of the proceedings in the lower court; or
- there is evidence that he or she offered the bribe in response to a demand by the public official.
Dispute resolution and risk management
Is it possible for anti-corruption cases to be settled before trial by means of plea bargaining or settlement agreements?
Plea bargaining with the court or the public prosecutor is not admissible in Portugal. However, the Portuguese criminal system allows for the suspension of the criminal proceedings under certain conditions (if the crime is punishable by up to five years’ imprisonment, the suspect was not previously granted a suspension in a case involving crimes of the same nature, the suspect was not previously convicted for a crime of the same nature, the level of guilt is not considered to be high and the suspect agrees to comply with a set of rules of conduct or obligations). If the prosecution understands that all these prerequisites were met, then the decision to suspend the criminal proceedings is presented to a pre-trial judge for confirmation, and then the suspension period will begin, for a maximum of two years. At the end of that suspension period, if the suspect manages to fulfil all his or her obligations, the proceedings will be filed and the case will be terminated, without going to court.
Are any types of payment procedure exempt from liability under the corruption regulations in your jurisdiction?
There is no type of payment procedure exemption from liability under Portuguese law. All payments and benefits are deemed to be illegitimate irrespectively of their value, unless they are socially adequate or compliant with social customs.
What other defences are available and who can qualify?
There are no specific defences to a corruption allegation, which need to be countered on a case-by-case basis.
Nevertheless, given that the Portuguese Criminal Code provides for an exemption to the criminal liability of companies whenever the individual has acted against express orders or instructions, it is important to resort to internal compliance programmes and documents when acting in defence of the company.
What compliance procedures and policies can a company put in place to assist in the creation of safe harbours?
Companies may be held liable for corruption crimes provided that the offence has been carried out in the corporate entity’s name and in its interest, by someone under an officer’s authority who is acting with a lack of vigilance, unless such person acted against express orders. In this context, effective compliance programmes may be considered as express orders, allowing the exemption to the companies’ criminal liability.
Therefore, companies should implement complete compliance programmes, including a clear code of conduct, compliance policies and guidelines. The compliance programmes should address specific risk factors such as gifts, hospitality, facilitation payments, sponsorship and donations. They must also include penalties for any breach of its requirements, establish whistleblowing hotlines and include regular monitoring and review schemes. It is also important that compliance programmes be effectively communicated throughout the company, including through regular training. They should be released among all companies’ stakeholders, employees, providers, customers, business partners, as well as the general public.
Record keeping and reporting
Record keeping and accounting
What legislation governs the requirements for record keeping and accounting in your jurisdiction?
The Commercial Code, the Corporate Income Tax Code, Law 83/2017 and Law 89/2017 outline a number of preventive provisions specifically related to record keeping and aimed at fighting money-laundering and the financing of terrorism.
What are the requirements for record keeping?
According to Articles 29, 31 and 40 of the Portuguese Commercial Code, companies are obliged to keep all documents relating to their commercial activity for a period of 10 years. These documents may be kept in a digital record.
Tax documents, by contrast, should be kept for a period of 12 years. Electronic filing of invoices issued by electronic means is permitted, provided that full online access to the data and integrity of its origin, content and legibility is ensured.
Law 83/2017 imposes several duties on financial institutions, some non-financial institutions and specific professions potentially vulnerable to suspicious transactions (eg, real estate companies) – namely, the duty of keeping records of the performed transactions for seven years.
Companies must keep copies, records or electronic data extracted from all documents obtained or made available to them by their clients or any other persons, in accordance with the identification and due diligence procedures provided for by law. These elements must be kept on a durable medium, preferably in electronic form, and be properly stored and easily located, as well as readily accessible upon request by the Financial Intelligence Unit, the judicial authorities and the tax and customs authorities.
Lastly, Law 89/2017 obligates companies to maintain an up-to-date internal register of the identification details of:
- shareholders, with a breakdown of their holdings;
- natural persons with holdings, even if held indirectly or through third parties; and
- those who have effective control thereof, in any way.
Failure to comply with this duty constitutes an administrative offence, which is punishable by a fine of up to €50,000.
Companies must also submit this information in digital form, disclosing their share capital structure, full identification of their legal representatives and managers, as well as full identification of their ultimate beneficial owners.
What are the requirements for companies regarding disclosure of potential violations of anti-corruption regulations?
In general, private companies are under no obligation to report potential violations of anti-corruption regulations.
However, internal auditors and members of the audit committee of private companies limited by shares are required to do so.
What penalties are available to the courts for violations of corruption laws by individuals?
Depending on whether the bribe was directed at obtaining an unlawful or lawful act, passive bribery is punishable by a penalty of one to eight years’ imprisonment or, alternatively (in case of lawful act), by a penalty of one to five years' imprisonment.
Active bribery for an unlawful act is punishable by a penalty of one to five years’ imprisonment or, alternatively (in case of bribery for a lawful act), by a penalty of up to three years' imprisonment or a fine of up to 360 days.
Undue receipt of advantage is punishable by up to five years' imprisonment or a fine up to 600 days (on the passive side), while the (active) perpetrator will be punished by up to three years' imprisonment or a fine of up to 360 days.
On the passive side, influence peddling is punishable by one to five years’ imprisonment if the purpose was to obtain an illegitimate favourable decision, or a penalty of up to three years’ imprisonment or a fine if the purpose was to obtain a legitimate favourable decision. On the active side, influence peddling is punishable by a penalty of up to three years’ imprisonment or a fine.
The exact penalty for these crimes may be increased by a quarter if the bribe amounts to a high value (approximately €5,100), or by one-third if the bribe amounts to a considerably high value (approximately €20,400), or if the perpetrator acted in his or her capacity as a representative of a corporate entity or individual.
Companies or organisations
What penalties are available to the courts for violations of corruption laws by companies or organisations?
Corporate entities charged with bribery may be sentenced to pay fines only. In regards to bribery for an illegal act, companies are liable for the payment of a fine of 60 to 600 days, each day ranging from €100 to €10,000 depending on their financial situation. In case of influence peddling, the fine may amount to a maximum of 360 days, with each day ranging from €100 to €10,000.
Additionally, companies may also be sentenced to further penalties such as the prohibition to enter into agreements or to receive state subsidies, among others.