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.