Lex Mundi Global Anti-Corruption Compliance Guide |
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Portugal |
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(Europe)
Firm
Morais Leitão, Galvão Teles, Soares Da Silva & Associados
Contributors
Rui Patrício |
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| What is the key anti-bribery and corruption legislation in your jurisdiction? | Portuguese law recognizes the following main offenses related to bribery and corruption:
Passive corruption can be defined as the request or acceptance by a public official of an undue advantage (patrimonial or not) as a return for carrying out a certain act or omission. Active corruption, on the other hand, is defined as the offering or the promise to offer an undue advantage to a public official in return for the performance of an official act. Corruption provisions apply regardless of whether the undue advantage is accepted by or offered to a public official/politician/private worker/sportsperson/military official or through an intermediary (as long as there is consent or ratification). They are also applicable regardless of whether the undue advantage is intended for the public official/politician/private worker/sportsperson/military official or for a third party, by his indication or with his knowledge. Corruption crimes are punishable whether the conduct expected in return for the undue advantage qualifies as a licit (not contrary to the duties exercised) or illicit (contrary to the duties exercised) action or omission, although the latter leads to a harsher penalty. Finally, Article 372 of the Portuguese Criminal Code, Article 16 of the Law on Corruption of Political and High Public Officials and Article 10-A of Law 50/2007 (regarding bribery in the context of sports competition), hold criminally liable the public official/political or high public official/sports agent that merely allows the promise or acceptance of an undue advantage for himself or a third person, as well as whoever offers, promises or grants such an advantage, regardless of the actual performance the promised action or omission promised in return. |
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| Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years? | As a result of the work of the parliamentary commission on transparency, Law 52/2019, of July 31st, introduced mandatory exclusivity n the exercise of public office and the obligation to present in a single document accessible online all the income and asset declarations issued by holders of political positions and high public offices. This declaration must also include every act and activity that could lead to incompatibilities and impediments of the holder of political position or high public office. Moreover, the work of the parliamentary commission on transparency led to Organic Law 4/2019, of September 13th, which officially created the Entity for Transparency of Holders of Political Positions and High Public Offices, the body responsible for, among others, the monitorization and assessment of the truthfulness of the income and asset declarations issued by public officers. The parliamentary commission on transparency has been working on new anti-bribery legislation for several years, including the regulation of the lobbying activity and alternatives to the criminalization of unlawful enrichment – which was dismissed as unconstitutional by the Constitutional Court. Regarding the regulation of the lobbying activity, the statute approved by the Portuguese Parliament on this subject in July 2019 was vetoed by the Portuguese President for having some insufficiencies which have yet to be rectified. The discussion on the regulation of the lobbying activity, notably in what concerns the rules of transparency applicable to private entities that carry out a legitimate representation of interests before public entities, is still under discussion and was once more rejected in 2021. After a lengthy process, the Portuguese Council of Ministers approved the National Anti-Corruption Strategy 2020-2024 (Estratégia Nacional de Combate à Corrupção 2020-2024) - Resolution 37/2021, of April 6th, culminating in the approval of Laws 94/2021 of December 21st, which brings forth major changes to the Criminal Code, Criminal Procedure Code and some other relevant legislation, Law 93/2021 of December 20th, which implements the EU directive on whistleblowers’ protection, and, lastly, Decree-Law 109-E/2021 of December 9th, which officially creates the National Anticorruption Mechanism (an independent entity with both monitorization and sanctioning power) as well as the General Corruption Prevention Regime, applicable to all parts of public administration and private entities employing over 50 people. However, these changes will only come into force in mid-2022. |
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| Is a bribe payment to domestic government officials prohibited by the legislation? | Yes. Regarding the punishment of crimes of corruption and undue receipt of an advantage, the Portuguese Criminal Code treats foreign civil servants like (Portuguese) civil servants whenever the infringement has been fully or partially committed on Portuguese territory (see the answer to "Is a bribe payment to domestic government officials prohibited by the legislation?"). Law 20/2008 of April 21, in turn, sets forth, in Article 7, that whoever, on his own or through an intermediary, with the former’s consent or ratification, gives or promises to give to a foreign civil servant or to an international organization employee any undue pecuniary or non-pecuniary advantage to obtain or maintain a business, a contract or any other undue advantage in international trade, commits an active corruption crime causing loss to international trade. This Law defines “foreign civil servant” as any person who, in the service of a foreign country, as a civil servant, agent or under any other capacity, has been called to perform or participate in the performance of an activity falling within the administrative or jurisdictional public service, even where provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily; or, in the same circumstances to perform functions in public-benefit bodies or participate in the same; or who performs functions as manager, officer of supervisory bodies or worker of public-owned or nationalized enterprises, or of companies with a majority public capital holding; of public service concessionaires; as well as any person who assumes and exercises a public service function in a private company under a public contract. It also defines the term “employee of an international organization” as a person who, at the service of a public international law organization, as an employee, agent or under any other capacity, has been called to perform or participate in the performance of an activity, even when provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily. |
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| Is a bribe payment to foreign government officials prohibited by the legislation? | Yes. In what concerns the punishment of crimes of corruption and crimes of undue receipt of an advantage, the Portuguese Criminal Code treats foreign civil servants as (Portuguese) civil servants whenever the infringement has been fully or partially committed on Portuguese territory (see the answer to "Is a bribe payment to domestic government officials prohibited by the legislation?"). Law 20/2008, of April 21, in turn, sets forth in Article 7 that whoever, on his own or through an intermediary, with the former’s consent or ratification, gives or promises to give to a foreign civil servant or to an international organization employee any pecuniary or non-pecuniary advantage that is not due to him to obtain or maintain a business, a contract or any other undue advantage in international trade, commits an active corruption crime causing loss to international trade. The said law defines “foreign civil servant” as any person who, in the service of a foreign country, as a civil servant, agent or under any other capacity, has been called to perform or participate in the performance of an activity falling within the administrative or jurisdictional public service, even where provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily; or in the same circumstances to perform functions in public-benefit bodies or participate in the same; or who performs functions as manager, officer of supervisory bodies or worker of public-owned or nationalized enterprises, or of companies with a majority public capital holding; of public service concessionaires; as well as any person who assumes and exercises a public service function in a private company under a public contract; and “employee of an international organization” as any person who, at the service of a public international law organization, as an employee, agent or under any other capacity, has been called to perform or participate in the performance of an activity, even when provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily. |
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| Is requesting or accepting a bribe prohibited by the legislation? | Yes. Such behavior falls under the scope of one of the following crimes:
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| Who is subject to the legislation? | The rule in Portuguese criminal law is that only natural persons are subject to criminal liability. The law, however, sets out some exceptions that allow the extension of criminal liability to legal persons, as is the case of crimes of corruption and undue receipt of an advantage, among others. Crimes of corruption follow the general rules to determine who the perpetrator is, as set forth in Article 26 of the Portuguese Criminal Code. A perpetrator may be punished as “principal” or “co-perpetrator” (depending on whether he executes or takes part in the execution of the act), “intermediary” (when he executes the act through a third party), or “instigator” (when he willfully induces a third party to carry out the act, provided that its execution is begun). Accomplices (any persons who willfully or in any other way material or morally contribute to the execution of a wrongful act by a third party) are also punishable for crimes of corruption, pursuant to Article 27 of the Portuguese Criminal Code, which provides sentence mitigation for these perpetrators. On the other hand, Portuguese criminal law sets out, as a general rule (with some exceptions admitted in Article 5 of the Portuguese Criminal Code), its applicability to actions carried out on Portuguese territory, irrespective of the perpetrator’s nationality. The application of Portuguese criminal law to actions carried out outside national territory by or against a legal person that has a registered headquarters on Portuguese territory is also provided for. Aside from the specific rules that govern Portuguese legislation on the bribery of foreign public officials within international commerce (which only require the active perpetrator to be of Portuguese nationality), Portuguese law shall apply also, notably, when the relevant crime:
Portuguese criminal law is also applicable to acts committed abroad in cases affected by international conventions to which Portugal is bound. Finally, Law 20/2008, of 21 April, which created the criminal framework for corruption in international trade and in the private sector, is applicable:
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| Is there criminal liability for corporate entities who have either paid or accepted a bribe payment? | As mentioned earlier, the rule is that only natural persons are criminally liable. Nevertheless, crimes of corruption and crimes of undue receipt of advantage are part of the list of crimes that admit the liability of legal persons, when carried out:
The liability of the state, of legal persons within the exercise of public power prerogatives and of public international law organizations, is excluded, but civil law companies and unincorporated associations are considered as entities treated as legal persons. The liability of legal persons and entities treated as such shall be excluded when the perpetrator has acted against the express orders or instructions of whoever is entitled to do so. |
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| What is the penalty for individuals violating the law? | Crimes of Corruption and Crimes of Undue Receipt of Advantage in the Public Sector Crimes of corruption and crimes of undue receipt of advantage set forth in the Portuguese Criminal Code carry a prison sentence, and in some cases an alternative fine. The sentences applicable to each specific crime are indicated in detail below. Sentences relating to crimes of corruption and crimes of undue receipt of advantage may be increased in respect of their minimum and maximum limits when the value of the advantage offered or promised is high or considerably high; the sentence may be increased by one-fourth or one-third, respectively. Under certain circumstances, sentences may also be mitigated, and in limited cases, the perpetrator may be waived. Pursuant to Article 47 of the Portuguese Criminal Code, in what concerns natural persons, the fine for each day corresponds to an amount between EUR 5 and EUR 500, which is set by the court taking into account the economic and financial situation of the agents and their personal charges.
Corruption Crimes in the Private Sector Law 20/2008, of 21 April, punishes crimes of corruption in the private sector with a prison sentence and in some cases, with an alternative fine as can be seen in the following table:
Active Corruption Crime in International Trade
Political or High Public Official
Armed Forces and Military Official
Criminal Regime for Unsporting Behaviors
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| Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law? | Crimes of Corruption and Crimes of Undue Receipt of Advantage in the Public Sector Only fines are applicable to legal persons. Article 90-B of the Portuguese Criminal Code sets forth that each day of fine corresponds to an amount between EUR 100 and EUR 10,000, which is set by the court after taking into account the economic and financial situation of the parties sentenced and the charges it holds in regard to its workers. Should the incriminating law only predict a prison sentence (and no day-rate system), the rule regarding legal persons is that one month of imprisonment corresponds to 10 days of fine.
Corruption Crimes in the Private Sector Law no. 20/2008, of 21 April, punishes crimes of corruption in the private sector with a prison sentence and in some cases, with an alternative fine as can be seen in the following table:
Active Corruption Crime in International Commerce
Criminal Regime for Unsporting Behaviors
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| Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense? | There is no specific rule in the Portuguese legal system that excludes the liability of legal persons for crimes of corruption when they have compliance programs in place aimed at preventing the commission of acts of corruption. However, and pursuant to Article 11(6) of the Portuguese Criminal Code, the liability of legal persons and entities treated as such is excluded when the perpetrator has acted against orders or instructions of whoever is entitled to give them. This rule has been interpreted by both doctrine and case law precisely in the sense that the existence and implementation of compliance programs and mechanisms that have certain characteristics (that would allow them to be regarded as orders or instructions) may result in the exclusion of the liability of legal persons for acts of corruption committed employees or any other person acting in the name or on behalf of that legal entity. Furthermore, and in accordance with most recent legislative changes (which have yet to come into force), the existence and effective implementation of compliance mechanisms in corporate entities is to become far more relevant than before. Compliance mechanisms and their implementation will become a factor in the risk weighing process that precedes the determination of an ancillary sanctions. They will also become part of the injunctions applied in the proceedings’ suspension mechanism and may be used to justify the reduction of the fine’s amount, or even its replacement with another, less grievous penalty. It will become possible for companies to, in practice, suspend or mitigate their criminal responsibility or penalty, based on, or condition to the implementation of functioning compliance mechanisms.
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| Assuming corporate entities are liable for violating the anticorruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities? | Portuguese law does not expressly contemplate such a possibility. However, there is a provisional suspension of proceedings mechanism materially similar to some plea bargaining systems. Under Articles 281 and 282 of the Criminal Procedural Code and Article 9 of Law 36/94 of September 29th (Measures applicable to the fight against Corruption and Financial and Economic Criminality), the public prosecutor and the defendant may reach, as long as they have the pre-trial judge’s accordance, an agreement leading to the suspension of the proceedings, depending on the defendant’s adherence to certain injunctions and/or rules of conduct. Prerequisites for such an agreement as follows:
In the event of an active corruption crime within the public sector, Article 9 of Law 36/94 establishes that the provisional suspension of the proceedings may be offered to a defendant when they has reported the crime, or the public prosecutor considers him to have decisively contributed to uncovering of the truth. In this case, the suspension is reliant of fewer prerequisites: other than the defendant’s contribution, it is only necessary that he agrees with the suspension and that it is foreseeable that compliance with the injunction and the rules of conduct are deterring enough to fulfill the prevention demands of that specific case. Proceedings can be suspended or up to two years, during which the statute of limitations period is also suspended. If the defendant complies with the set of injunctions and rules of conduct until the end of the prescribed period, the public prosecutor dismisses the proceedings. Failure to comply with the terms agreed or recidivism, however, will cause them to resume, ultimately leading to a formal indictment. |
Lex Mundi Global Anti-Corruption Compliance Guide
Portugal
(Europe) Firm Morais Leitão, Galvão Teles, Soares Da Silva & AssociadosContributors Rui Patrício
Updated 01 Feb 2022Portuguese law recognizes the following main offenses related to bribery and corruption:
- undue receipt (or offering) of an advantage by (or to) a public official, punishable under Article 372 of the Portuguese Criminal Code (Decree-Law 400/82, September 23);
- passive and active corruption in the public sector, punishable under Articles 373 and 374 of the Portuguese Criminal Code (Decree-Law 400/82, September 23);
- undue receipt of an advantage by a political or high public official, punishable under Article 16 of the Law on Crimes of the Responsibility of Political Officials (Law 34/87, July 16);
- passive and active corruption of political and high public officials, punishable under Articles 17 and 18 of the Law on Crimes of the Responsibility of Political Officials (Law 34/87, July 16);
- active corruption in international commerce and passive and active corruption in the private sector, punishable under Articles 8 and 9 of the Criminal Regime for Corruption in the International Commerce and in Private Sector (Law 20/2008, April 21);
- passive corruption of an individual serving in the Armed Forces or other military forces, punishable under Article 36 of the Military Justice Code (Law 100/2003, November 15)
- active corruption of an individual serving in the Armed Forces or other military forces, punishable under Article 37 of the Military Justice Code (Law 100/2003, November 15);
- passive and active corruption of a sports agent, punishable under Articles 7, 8 and 9 of the Criminal Regime for Unsporting Behaviors (Law 50/2007, 31 August); and
- undue receipt (or offering) of an advantage by (or to) a sports agent, punishable under Article 10-A of the Criminal Regime for Unsporting Behaviors (Law 50/2007, 31 August).
Passive corruption can be defined as the request or acceptance by a public official of an undue advantage (patrimonial or not) as a return for carrying out a certain act or omission. Active corruption, on the other hand, is defined as the offering or the promise to offer an undue advantage to a public official in return for the performance of an official act.
Corruption provisions apply regardless of whether the undue advantage is accepted by or offered to a public official/politician/private worker/sportsperson/military official or through an intermediary (as long as there is consent or ratification). They are also applicable regardless of whether the undue advantage is intended for the public official/politician/private worker/sportsperson/military official or for a third party, by his indication or with his knowledge.
Corruption crimes are punishable whether the conduct expected in return for the undue advantage qualifies as a licit (not contrary to the duties exercised) or illicit (contrary to the duties exercised) action or omission, although the latter leads to a harsher penalty.
Finally, Article 372 of the Portuguese Criminal Code, Article 16 of the Law on Corruption of Political and High Public Officials and Article 10-A of Law 50/2007 (regarding bribery in the context of sports competition), hold criminally liable the public official/political or high public official/sports agent that merely allows the promise or acceptance of an undue advantage for himself or a third person, as well as whoever offers, promises or grants such an advantage, regardless of the actual performance the promised action or omission promised in return.
As a result of the work of the parliamentary commission on transparency, Law 52/2019, of July 31st, introduced mandatory exclusivity n the exercise of public office and the obligation to present in a single document accessible online all the income and asset declarations issued by holders of political positions and high public offices. This declaration must also include every act and activity that could lead to incompatibilities and impediments of the holder of political position or high public office.
Moreover, the work of the parliamentary commission on transparency led to Organic Law 4/2019, of September 13th, which officially created the Entity for Transparency of Holders of Political Positions and High Public Offices, the body responsible for, among others, the monitorization and assessment of the truthfulness of the income and asset declarations issued by public officers.
The parliamentary commission on transparency has been working on new anti-bribery legislation for several years, including the regulation of the lobbying activity and alternatives to the criminalization of unlawful enrichment – which was dismissed as unconstitutional by the Constitutional Court. Regarding the regulation of the lobbying activity, the statute approved by the Portuguese Parliament on this subject in July 2019 was vetoed by the Portuguese President for having some insufficiencies which have yet to be rectified. The discussion on the regulation of the lobbying activity, notably in what concerns the rules of transparency applicable to private entities that carry out a legitimate representation of interests before public entities, is still under discussion and was once more rejected in 2021.
After a lengthy process, the Portuguese Council of Ministers approved the National Anti-Corruption Strategy 2020-2024 (Estratégia Nacional de Combate à Corrupção 2020-2024) - Resolution 37/2021, of April 6th, culminating in the approval of Laws 94/2021 of December 21st, which brings forth major changes to the Criminal Code, Criminal Procedure Code and some other relevant legislation, Law 93/2021 of December 20th, which implements the EU directive on whistleblowers’ protection, and, lastly, Decree-Law 109-E/2021 of December 9th, which officially creates the National Anticorruption Mechanism (an independent entity with both monitorization and sanctioning power) as well as the General Corruption Prevention Regime, applicable to all parts of public administration and private entities employing over 50 people. However, these changes will only come into force in mid-2022.
Yes. Regarding the punishment of crimes of corruption and undue receipt of an advantage, the Portuguese Criminal Code treats foreign civil servants like (Portuguese) civil servants whenever the infringement has been fully or partially committed on Portuguese territory (see the answer to "Is a bribe payment to domestic government officials prohibited by the legislation?").
Law 20/2008 of April 21, in turn, sets forth, in Article 7, that whoever, on his own or through an intermediary, with the former’s consent or ratification, gives or promises to give to a foreign civil servant or to an international organization employee any undue pecuniary or non-pecuniary advantage to obtain or maintain a business, a contract or any other undue advantage in international trade, commits an active corruption crime causing loss to international trade.
This Law defines “foreign civil servant” as any person who, in the service of a foreign country, as a civil servant, agent or under any other capacity, has been called to perform or participate in the performance of an activity falling within the administrative or jurisdictional public service, even where provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily; or, in the same circumstances to perform functions in public-benefit bodies or participate in the same; or who performs functions as manager, officer of supervisory bodies or worker of public-owned or nationalized enterprises, or of companies with a majority public capital holding; of public service concessionaires; as well as any person who assumes and exercises a public service function in a private company under a public contract. It also defines the term “employee of an international organization” as a person who, at the service of a public international law organization, as an employee, agent or under any other capacity, has been called to perform or participate in the performance of an activity, even when provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily.
Yes. In what concerns the punishment of crimes of corruption and crimes of undue receipt of an advantage, the Portuguese Criminal Code treats foreign civil servants as (Portuguese) civil servants whenever the infringement has been fully or partially committed on Portuguese territory (see the answer to "Is a bribe payment to domestic government officials prohibited by the legislation?").
Law 20/2008, of April 21, in turn, sets forth in Article 7 that whoever, on his own or through an intermediary, with the former’s consent or ratification, gives or promises to give to a foreign civil servant or to an international organization employee any pecuniary or non-pecuniary advantage that is not due to him to obtain or maintain a business, a contract or any other undue advantage in international trade, commits an active corruption crime causing loss to international trade.
The said law defines “foreign civil servant” as any person who, in the service of a foreign country, as a civil servant, agent or under any other capacity, has been called to perform or participate in the performance of an activity falling within the administrative or jurisdictional public service, even where provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily; or in the same circumstances to perform functions in public-benefit bodies or participate in the same; or who performs functions as manager, officer of supervisory bodies or worker of public-owned or nationalized enterprises, or of companies with a majority public capital holding; of public service concessionaires; as well as any person who assumes and exercises a public service function in a private company under a public contract; and “employee of an international organization” as any person who, at the service of a public international law organization, as an employee, agent or under any other capacity, has been called to perform or participate in the performance of an activity, even when provisionally or temporarily, for consideration or without charge, voluntarily or mandatorily.
Yes. Such behavior falls under the scope of one of the following crimes:
- Passive corruption crime – the punishment of any civil servant who requests or accepts an advantage in return for carrying ( or not carrying) out a certain act is set forth in Article 373 (1) and (2) of the Portuguese Criminal Code, which respectively defines passive corruption crime for an unlawful act and passive corruption crime for a lawful act.
- Crime of undue receipt of advantage in its passive form – the punishment of any civil servant who requests or accepts an advantage (pecuniary or not) which is not due to him, in the exercise of his functions or because of them, as set forth in Article 372 (1) of the Portuguese Criminal Code.
- Passive corruption crime in the private sector – the punishment of any employee of a private sector company who requests or accepts an advantage in return for carrying (or not carrying) out a certain act, which constitutes a violation of its functional duties as set forth in Article 8 (1) and (2) of the Criminal Regime for Corruption in the International Commerce and in Private Sector (Law 20/2008, 21 April).
- Passive corruption crime by a political or high public official – the punishment of any political or high public official who requests or accepts an advantage in return for carrying (or not carrying) out a certain act is set forth by Article 17 (1) and (2) of the Law on Crimes of the Responsibility of Political Officials (Law 34/87, 16 July).
- Passive corruption crime by an Armed Forces or a military official – the punishment of soliciting or accepting an undue advantage for the practice of an act or lack thereof, contrary to military duties and resulting in a peril to national security is set forth in Article 36 (1) and (2) of the Military Justice Code (Law 100/2003, 15 November).
- Passive corruption by a sports agent – the punishment of any sports agent who requests or accepts an advantage in return for carrying (or not carrying) out a certain act aiming to modify or falsify a certain sports competition result, is set forth in Article 8 of the Criminal Regime for Unsporting Behaviors (Law 50/2007, 31 August).
- Crime of undue receipt in its passive form for a sports agent – the punishment of any sports agent who requests or accepts an advantage (pecuniary or not) which is not due to him, in the exercise of his functions or because of them, as set forth in Article 10-A of the Criminal Regime for Unsporting Behaviors (Law 50/2007, 31 August).
The rule in Portuguese criminal law is that only natural persons are subject to criminal liability. The law, however, sets out some exceptions that allow the extension of criminal liability to legal persons, as is the case of crimes of corruption and undue receipt of an advantage, among others.
Crimes of corruption follow the general rules to determine who the perpetrator is, as set forth in Article 26 of the Portuguese Criminal Code. A perpetrator may be punished as “principal” or “co-perpetrator” (depending on whether he executes or takes part in the execution of the act), “intermediary” (when he executes the act through a third party), or “instigator” (when he willfully induces a third party to carry out the act, provided that its execution is begun).
Accomplices (any persons who willfully or in any other way material or morally contribute to the execution of a wrongful act by a third party) are also punishable for crimes of corruption, pursuant to Article 27 of the Portuguese Criminal Code, which provides sentence mitigation for these perpetrators.
On the other hand, Portuguese criminal law sets out, as a general rule (with some exceptions admitted in Article 5 of the Portuguese Criminal Code), its applicability to actions carried out on Portuguese territory, irrespective of the perpetrator’s nationality. The application of Portuguese criminal law to actions carried out outside national territory by or against a legal person that has a registered headquarters on Portuguese territory is also provided for.
Aside from the specific rules that govern Portuguese legislation on the bribery of foreign public officials within international commerce (which only require the active perpetrator to be of Portuguese nationality), Portuguese law shall apply also, notably, when the relevant crime:
- is perpetrated by Portuguese citizens against other Portuguese citizens who live in Portugal;
- is perpetrated by Portuguese citizens or by foreign nationals against Portuguese citizens, if the perpetrator is to be found in Portugal and if the facts are punishable in the territory where they took place (unless such punitive power is not carried out in that place) and the extradition cannot be performed, or if there is a decision not to surrender the offender as a result of a European arrest warrant or other binding international agreement; or
- is perpetrated by or against a legal person with its headquarters in Portuguese territory.
Portuguese criminal law is also applicable to acts committed abroad in cases affected by international conventions to which Portugal is bound.
Finally, Law 20/2008, of 21 April, which created the criminal framework for corruption in international trade and in the private sector, is applicable:
- in the case of active corruption crime with a loss to international trade, to actions carried out by Portuguese nationals or by foreigners who are found in Portugal, irrespective of the place where they have been carried out; and
- in the case of active and passive corruption crimes in the private sector, irrespective of the place where the actions have been carried out, when anyone who gives, promises to give, requests or accepts the advantage or promise of an advantage is a national employee or a national political office holder, or where he is a Portuguese national and is an employee of an international organization.
As mentioned earlier, the rule is that only natural persons are criminally liable. Nevertheless, crimes of corruption and crimes of undue receipt of advantage are part of the list of crimes that admit the liability of legal persons, when carried out:
- in their name and in the collective interest by persons who have a leadership role in them; or
- by anyone who acts under the authority of the persons referred to in the previous paragraph by virtue of a breach of the surveillance or control duties incumbent upon them.
The liability of the state, of legal persons within the exercise of public power prerogatives and of public international law organizations, is excluded, but civil law companies and unincorporated associations are considered as entities treated as legal persons.
The liability of legal persons and entities treated as such shall be excluded when the perpetrator has acted against the express orders or instructions of whoever is entitled to do so.
Crimes of Corruption and Crimes of Undue Receipt of Advantage in the Public Sector
Crimes of corruption and crimes of undue receipt of advantage set forth in the Portuguese Criminal Code carry a prison sentence, and in some cases an alternative fine. The sentences applicable to each specific crime are indicated in detail below.
Sentences relating to crimes of corruption and crimes of undue receipt of advantage may be increased in respect of their minimum and maximum limits when the value of the advantage offered or promised is high or considerably high; the sentence may be increased by one-fourth or one-third, respectively.
Under certain circumstances, sentences may also be mitigated, and in limited cases, the perpetrator may be waived.
Pursuant to Article 47 of the Portuguese Criminal Code, in what concerns natural persons, the fine for each day corresponds to an amount between EUR 5 and EUR 500, which is set by the court taking into account the economic and financial situation of the agents and their personal charges.
| Crime | Sentence | Rule |
|---|---|---|
| Crime of undue receipt of an advantage |
A natural person who requests or accepts an undue advantage: a prison sentence of up to 5 years of fine of up to 600 days. A natural person who gives or promises an undue advantage: a prison sentence of up to 3 years or fine of up to 360 days. |
Articles 47 (1) and (2) and 372 (1) and (2) of the Portuguese Criminal Code |
| Passive corruption crime | Prison sentence of 1 to 8 years. Where the request or acceptance constitutes consideration for the commission of a lawful act or omission by a civil servant: a prison sentence of 1 to 5 years. |
Article 373 (1) and (2) of the Portuguese Criminal Code |
| Active corruption crime | Prison sentence of 1 to 5 years. If the purpose of the offer of advantage or its promise is the commission of a lawful act or omission by a civil servant: prison sentence of up to 3 years or a fine of up to 360 days. The attempt is punishable. |
Articles 47 (1) and (2) and 374 (1), (2) and (3)of the Portuguese Criminal Code |
Corruption Crimes in the Private Sector
Law 20/2008, of 21 April, punishes crimes of corruption in the private sector with a prison sentence and in some cases, with an alternative fine as can be seen in the following table:
| Crime | Sentence | Rule |
|---|---|---|
| Passive corruption crime in the private sector |
Prison sentence of up to 5 years or Where the conduct aims at |
Article 47 (1) and (2) of the Portuguese Criminal Code and Article 8 (1) and (2) of the Criminal Regime for Corruption in the International Commerce and in Private Sector (Law 20/2008, 21 April) |
| Active corruption crime in the private sector |
Prison sentence of up to 3 years or Where the conduct aims at The attempt is punishable. |
Articles 47 (1) and (2) of the |
Active Corruption Crime in International Trade
| Crime | Sentence | Rule |
|---|---|---|
| Active corruption crime in international trade |
A prison sentence of 1 to 8 years. | Article 7 of the Criminal Regime for Corruption in the International Commerce and in Private Sector (Law 20/2008, of April 21st) |
Political or High Public Official
| Crime | Sentence | Rule |
|---|---|---|
| Crime of undue receipt of advantage by a political or high public official |
Soliciting or accepting an undue Offering or promising to offer an |
Article 16 (1) and (2) of the Law on |
| Passive corruption crime by a political or high public official |
Soliciting or accepting an undue Soliciting or accepting an undue |
Article 17 (1) and (2) of the Law on |
| Active corruption crime of a political or high public official |
The offer or promise of offer of an The offer or promise of offer of an |
Article 18 (1), (2) and (3) of the Law on Crimes of the Responsibility of Political Officials (Law 34/87, of July 16th) |
Armed Forces and Military Official
| Crime | Sentence | Rule |
|---|---|---|
| Passive corruption crime by an Armed Forces or a Military official |
Soliciting or accepting an undue If the agent, before practicing the |
Article 36 (1) and (2) of the Military Justice Code (Law 100/2003, of November 15th) |
| Active corruption crime of an Armed Forces or a Military official |
The offer or promise of offer of an If the corrupting agent is an official |
Article 37 (1) and (2) of the Military Justice Code (Law 100/2003, of November 15th) |
Criminal Regime for Unsporting Behaviors
| Crime | Sentence | Rule |
|---|---|---|
| Crime of undue receipt of an advantage by (or to) a sports agent |
A sports agent who asks for or accepts an undue advantage can receive a prison sentence of up to 5 years or a fine of up to 600 days. A natural person who gives or promises to give an undue advantage to a sports agent can receive a prison sentence of up to 3 years or a fine of up to 360 days. The penalty can be mitigated, should the agent choose to help in the collection of decisive evidence in the identification or capture process of other responsible agents. The penalty can be waived if the agent, before practicing the act or omission, voluntarily rejects the offer or its promise or returns it. |
Article 47 (1) and (2) of the Portuguese Criminal Code and Article 10-A (1) and (2) of the Criminal Regime for Unsporting Behaviors (Law 50/2007,of August 31st) |
| Passive corruption crime of a sports agent |
Prison sentence of 1 to 8 years. If the promised advantage is of high value, both the minimum and maximum limits of the penalty will be aggravated by a third. The minimum and maximum limits of the penalties will be aggravated by a third if the promised advantage is of considerably high value. The same will happen when the agent is a sports director, referee, sports agent or legal person. The penalty can be mitigated, should the agent choose to help in the collection of decisive evidence in the identification or capture process of other responsible agents. The penalty can be waived if the agent, before practicing the act or omission, voluntarily rejects the offer or its promise or returns it. |
Articles 8 and 12 of the Criminal Regime for Unsporting Behaviors (Law 50/2007, of August 31st) |
| Active corruption crime of a sports agent |
Prison sentence of 1 to 5 years. If the promised advantage is of high value, both the minimum and maximum limits of the penalty will be aggravated by a third. The minimum and maximum limits of the penalties will be aggravated by a third if the promised advantage is of considerably high value. The same will happen when the agent is a sports director, referee, sports agent or legal person. The penalty can be mitigated, should the agent choose to help in the collection of decisive evidence in the identification or capture process of other responsible agents. The penalty can be waived if the agent, before practicing the act or omission, voluntarily rejects the offer or its promise or returns it. The attempt is punishable. |
Articles 9 and 12 of the Criminal Regime for Unsporting Behaviors (Law 50/2007, of August 31st), and article 202, a) and b) of the Portuguese Criminal Code |
Crimes of Corruption and Crimes of Undue Receipt of Advantage in the Public Sector
Only fines are applicable to legal persons. Article 90-B of the Portuguese Criminal Code sets forth that each day of fine corresponds to an amount between EUR 100 and EUR 10,000, which is set by the court after taking into account the economic and financial situation of the parties sentenced and the charges it holds in regard to its workers. Should the incriminating law only predict a prison sentence (and no day-rate system), the rule regarding legal persons is that one month of imprisonment corresponds to 10 days of fine.
| Crime | Sentence | Rule |
|---|---|---|
| Crime of undue receipt of an advantage |
A legal person that requests or A legal person who gives or |
Articles 90-B (3) and 372 (1) and (2) of the Portuguese Criminal Code |
| Passive corruption crime |
Fine of 120 to 960 days Where the request or acceptance |
Articles 90-B (2) and 373 (1) and (2) of the Portuguese Criminal Code |
| Active corruption crime |
Fine of 120 to 600 days. If the purpose of the offer of The attempt is punishable |
Articles 90-B (2) and (3) and 374 (1) and (2) of the Portuguese Criminal Code |
Corruption Crimes in the Private Sector
Law no. 20/2008, of 21 April, punishes crimes of corruption in the private sector with a prison sentence and in some cases, with an alternative fine as can be seen in the following table:
| Crime | Sentence | Rule |
|---|---|---|
|
Passive corruption crime in the |
Fine of up to 600 days. Where the conduct aims at |
Article 90-B (2) and (3) of the Portuguese Criminal Code and Articles 4 and 8 (1) and (2) of the Criminal Regime for Corruption in the International Commerce and in Private Sector (Law 20/2008, of April 21st). |
| Active corruption crime in the private sector |
Fine of up to 360 days. Where the conduct aims at or is likely to cause a competition distortion or asset loss to third parties: fine of up to 600 days. The attempt is punishable |
Article 90-B (2) and (3) of the Portuguese Criminal Code and Articles 4 and 9 (1) and (2) of the Criminal Regime for Corruption in the International Commerce and in Private Sector (Law 20/2008, of April 21st). |
Active Corruption Crime in International Commerce
| Crime | Sentence | Rule |
|---|---|---|
| Active corruption crime in international commerce | Fine of 120 to 960 days | Article 90-B (2) of the Portuguese Criminal Code and Article 4 and 7 of the Criminal Regime for Corruption in the International Commerce and in Private Sector (Law 20/2008, of April 21st). |
Criminal Regime for Unsporting Behaviors
| Crime | Sentence | Rule |
|---|---|---|
| Crime of undue receipt of an advantage |
A legal person qualified as a sports agent, who asks for or accepts an undue advantage: fine of up to 600 days. A legal person who gives or These penalties will be aggravated by a third, should the agent be a sports legal person. |
Article 90-B (3) of the Portuguese Criminal Code and Articles 4 and 10-A (1) and (2), and 12 (1) of the Criminal Regime for Unsporting Behaviors (Law 50/2007, of August 31st) |
| Passive corruption crime of a sports agent |
Fine of 120 to 960 days. The penalty will be aggravated by a third should the agent be a sports legal person. |
Article 90-B (2) of the Portuguese Criminal Code and Articles 4, 8, and 12 (1) of the Criminal Regime for Unsporting Behaviors (Law 50/2007, of August 31st) |
| Active corruption crime of a sports agent |
Fine of 120 to 600 days. The penalty will be aggravated by a third should the agent be a sports legal person. |
Article 90-B (2) of the Portuguese Criminal Code and Articles 4, 9 and 12 (1) of the Criminal Regime for Unsporting Behaviors (Law 50/2007, of August 31st) |
There is no specific rule in the Portuguese legal system that excludes the liability of legal persons for crimes of corruption when they have compliance programs in place aimed at preventing the commission of acts of corruption.
However, and pursuant to Article 11(6) of the Portuguese Criminal Code, the liability of legal persons and entities treated as such is excluded when the perpetrator has acted against orders or instructions of whoever is entitled to give them. This rule has been interpreted by both doctrine and case law precisely in the sense that the existence and implementation of compliance programs and mechanisms that have certain characteristics (that would allow them to be regarded as orders or instructions) may result in the exclusion of the liability of legal persons for acts of corruption committed employees or any other person acting in the name or on behalf of that legal entity.
Furthermore, and in accordance with most recent legislative changes (which have yet to come into force), the existence and effective implementation of compliance mechanisms in corporate entities is to become far more relevant than before. Compliance mechanisms and their implementation will become a factor in the risk weighing process that precedes the determination of an ancillary sanctions. They will also become part of the injunctions applied in the proceedings’ suspension mechanism and may be used to justify the reduction of the fine’s amount, or even its replacement with another, less grievous penalty. It will become possible for companies to, in practice, suspend or mitigate their criminal responsibility or penalty, based on, or condition to the implementation of functioning compliance mechanisms.
Portuguese law does not expressly contemplate such a possibility.
However, there is a provisional suspension of proceedings mechanism materially similar to some plea bargaining systems.
Under Articles 281 and 282 of the Criminal Procedural Code and Article 9 of Law 36/94 of September 29th (Measures applicable to the fight against Corruption and Financial and Economic Criminality), the public prosecutor and the defendant may reach, as long as they have the pre-trial judge’s accordance, an agreement leading to the suspension of the proceedings, depending on the defendant’s adherence to certain injunctions and/or rules of conduct. Prerequisites for such an agreement as follows:
- the crime must be punishable with a prison sentence not exceeding five years or with a penalty different from imprisonment;
- both the offended party (when they take part in the proceedings) and the defendant must agree to it;
- the absence of a previous conviction for a crime of the same nature;
- the absence of previous provisional suspension for a crime of the same nature;
- the absence of institutionalization as a safety measure;
- the absence of a high level of guilt; and
- the projection that compliance with the injunction and the rules of conduct is deterrent enough to fulfill the prevention demands of the case at hand.
In the event of an active corruption crime within the public sector, Article 9 of Law 36/94 establishes that the provisional suspension of the proceedings may be offered to a defendant when they has reported the crime, or the public prosecutor considers him to have decisively contributed to uncovering of the truth. In this case, the suspension is reliant of fewer prerequisites: other than the defendant’s contribution, it is only necessary that he agrees with the suspension and that it is foreseeable that compliance with the injunction and the rules of conduct are deterring enough to fulfill the prevention demands of that specific case.
Proceedings can be suspended or up to two years, during which the statute of limitations period is also suspended. If the defendant complies with the set of injunctions and rules of conduct until the end of the prescribed period, the public prosecutor dismisses the proceedings. Failure to comply with the terms agreed or recidivism, however, will cause them to resume, ultimately leading to a formal indictment.