In Portugal, most white-collar offences are characterised as regulatory offences or criminal offences.

Regulatory offences are minor, less serious offences when compared to criminal offences and they generally refer to social ordering. Criminal offences, in general, have a higher level of harm to legal interests that are essential to the organisation, structure and functioning of society. Regulatory offences tend to have monetary fines as sanctions, and they are also sanctioned by administrative authorities. These fines may be challenged in court through an appeal from the administrative authority’s decision.

As a rule, demonstration of the agent’s intent is a necessary condition for punishment. Mere intent is not, however, sufficient, since the agent also needs to undertake actions in furtherance of the offence. Negligent conduct – without intent – is only punishable when expressly provided by law.

However, it is possible for a person to be held liable for attempting to commit an offence, when legally provided. Generally speaking, the penalty is mitigated.

Regarding criminal offences, an attempt is also punishable where the criminal offence, if fully carried out, is sanctioned with imprisonment for a period exceeding three years (Article 23 of the Portuguese Criminal Code).

The criminal offences referred to in the following sections have a general limitation period of 15 years.

Although the limitation period is generally established according to the maximum applicable penalty to each criminal offence, Article 118, No 1, al. a) of the Portuguese Criminal Code states, as a rule, the limitation period of 15 years for several white-collar criminal offences, such as money laundering and corruption. 

Regarding regulatory offences, limitation periods vary depending on the amount of the applicable fine. As a rule, for an offence with a monetary fine higher than EUR49,879.79, the limitation period is five years. For those with a monetary fine between EUR2,493.99 and EUR49,879.79, there is a limitation period of three years. In case of a lower applicable fine, the limitation period is one year.

The limitation period starts to run from the moment the fact is perpetrated. In case of continuing office, the limitation period starts running from the moment of the commission of the last act in the series.

The aforementioned limitation periods are still subject to suspension and interruption norms and may therefore be extended.

Portuguese law is applicable within the Portuguese borders, regardless of the agent’s nationality, as well as within Portuguese ships and aircraft, despite their concrete location.

Portuguese law shall also apply to criminal offences committed outside Portuguese territory, notably when the offence:

• is perpetrated by Portuguese citizens against other Portuguese citizens who live in Portugal;
• is perpetrated by Portuguese citizens or by foreigners against Portuguese citizens, if:

a)       the perpetrator is found in Portugal,

b)       the offence is also punishable in the territory where it took place (unless the punitive power is not carried out in that place), and

c)       the extradition cannot be performed or if it is decided not to surrender the perpetrator by virtue of a European arrest warrant or other international agreement binding Portugal; or

• is perpetrated by or against a legal person with headquarters in Portuguese territory.

Portuguese criminal law is also applicable to acts committed abroad in cases ruled by international conventions to which Portugal is bound.

Specific Rules

Aside from the general rules, Portuguese law shall be applied in cases of white-collar crime concerning:

• bribery of foreign public officials within international commerce, if the perpetrator is Portuguese; 
• active corruption, if the perpetrator is Portuguese or a foreigner found in Portugal, regardless of where the action took place;
• passive and active corruption in the private sector, if the perpetrator who gives, promises, demands or accepts the bribe or promise of a bribe is a public or political official, or an official of an international organisation; and
• money laundering – Portuguese criminal law shall be applied when any stage of the money laundering process is related in any way to Portugal.

Both corporate and personal criminal liability are ruled by Article 11, Nos 1 and 2 of the Portuguese Criminal Code.

The liability of legal persons, such as companies, is an exception to the general rule that only natural persons are criminally responsible. Therefore, legal persons may only be held responsible when expressly provided for by law.

For instance, legal persons may be punished for the crimes of money laundering, corruption, and undue receipt of an advantage, if the facts are executed on behalf of the company and for their account by an individual who occupies a position of leadership.

In such cases, both corporate and personal liability may coexist, and, therefore, both legal and natural persons may be held responsible.

In the context of mergers and acquisitions, or a spin-off, the new entity (or entities) may be punished for offences committed prior to the merger.

Individuals who occupy a position of leadership within the company are subsidiarily responsible for the payment of fines and compensations ordered against the company, if:

• the offence was committed during their term of office and without their express opposition;
• due to their conduct, the company does not have the capacity to pay; and
• the definite decision was rendered during their term of office and the lack of payment is attributable to them.

Regarding regulatory offences, both legal and natural persons may be held liable. However, the legal person’s liability shall be excluded if the employee acted against direct orders. In that case, only the employee may be responsible for the offence.

As a rule, those who are victims of white-collar offences may file for damages in the context of the criminal procedure and, therefore, before a criminal court. The possibility of claiming damages before a criminal and not a civil court is intended to allow for a clearer comprehension of the facts and avoid contradictions.

A claim for damages resulting from the commission of a crime may only be filed before a civil court in the cases provided for by law. For instance, if the criminal procedure does not lead to an accusation within eight months or if the damages occur after the charges or if they are not known (or completely known) by that time (Articles 71 and 72 of the Portuguese Criminal Procedure Code). 

Recently, there have been several high-profile cases related to white-collar offences. For example:

• the “Operação Marquês” proceedings, in which a former Prime Minister of Portugal and the former CEO of one of the largest Portuguese private banks (among other corporate elites, namely the former chief executives of Portugal Telecom) were formally charged with several counts of corruption, money laundering, document forgery and tax fraud;
• the “E-Toupeira” proceedings, related to alleged corruption practices within the sports industry, involving a top Portuguese football club that was subsequently entirely dismissed from any liability during the pre-trial stage;
• the “Operação Lex” proceedings, concerning alleged corruption practices within the judiciary system, in which two former judges of the Lisbon Court of Appeal were formally indicted;
• the “CMEC” proceedings, regarding alleged corruption practices within the energy sector, involving top managers from main Portuguese companies operating in the energy sector and former ministers and secretaries of state from the Portuguese government; and
• the president of a major Portuguese football club was detained due to suspicions of deception, breach of trust and money laundering.

The Portuguese Parliament has approved a National Anti-corruption Strategy (Estratégia Nacional de Combate à Corrupção 2020–2024), aimed at: (i) enhancing knowledge and institutional practices in the fields of transparency and integrity; (ii) preventing and detecting risks of corruption within the public sector; (iii) involving the private sector in the prevention, detection and repression of corruption, notably through compliance mechanisms; and (iv) strengthening collaboration between public and private institutions.

In order to implement the priorities established in the Strategy, three legislative texts were approved.

• Decree-Law No 109-E/2021 – (i) created the National Anti-corruption Mechanism (Mecanismo Nacional Anticorrupção), a new national authority mainly responsible for collaborating with the governing and legislative bodies in matters of corruption and related infractions, as well as for working with the administrative authorities to enforce compliance mechanisms; and (ii) established a general regime for the prevention of corruption (Regime geral de prevenção da corrupão).

The new regime sets out a variety of compliance obligations for public and private entities. The entities now have to adopt a compliance programme, which shall include: (i) a plan for the prevention of risks of corruption and related offences; (ii) a code of conduct; (iii) a training programme for employees; and (iv) a whistle-blowing channel. 

• Law No 93/2021 – transposes the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 and establishes a regime for the protection of persons who report breaches of Union Law.
• Law No 94/2021 – sets changes to the Portuguese Criminal Code and Portuguese Procedure Code according to measures set out in the National Anti-corruption Strategy.

The authority responsible for the investigation of white-collar crimes is the Public Prosecutor’s Office, with the aid of criminal police authorities (Polícia Judiciária), in particular, the National Anti-corruption Unit and the National Unit against Cybercrime and Technology Crime.

The investigation of most relevant cases is carried out by the Central Department of Investigation and Prosecution, which has nationwide jurisdiction to co-ordinate and direct the investigation and prevention of some criminal offences, specifically those which are particularly complex, of a violent nature or highly organised, such as white-collar crimes.

Moreover, the Bank of Portugal, the Portuguese Securities Market Commission, the Registry and Notary Office and the Tax Authority, among others, are also responsible for investigating regulatory infractions related to white-collar offences.

These entities may also enforce, in certain fields of activity, regulations that create obligations to ensure compliance mechanisms and measures are adopted to help prevent white-collar offences. 

Most white-collar crimes have a procedural public nature, which means that the investigation is officially initiated by the Public Prosecutor’s Office, without the need for a complaint to be filed by the offended.

Moreover, the public entities mentioned in 2.1 Enforcement Authorities may, within their monitoring and supervision activities, detect a suspicious situation and initiate an internal investigation. Subsequently, they can report the facts gathered to the Public Prosecutor’s Office if there are reasons to suspect the commission of a crime.

If the facts are, instead, qualifiable as regulatory offences, these entities have powers to initiate the proceedings, investigate the facts and convict the perpetrator. 

The Public Prosecutor’s Office has powers to (i) order the examination of people, places, and objects; (ii) order measures of search and seizure, when it is suspected that someone keeps items related to a crime or when it is suspected that something related to a crime is to be found in a private place; (iii) order the interception of calls and other media; and (iv) interview witnesses.

Moreover, the Public Prosecutor’s Office has some specific powers during the investigation of organised crime and economic and financial crime.

Law No 5/2002, 11 January 2002, which establishes measures to combat organised and economic and financial crime, allows for a more effective collection of evidence through requests for documentation and information. Under this law, any breach of banking and professional secrecy must be ordered by the judiciary authority conducting the proceedings.

The enforcement bodies also have complete access to the tax administration database. Financial institutions are required to provide the information requested within a period of five days (if the information is available as computer data), or 30 days (if the information is not available as computer data); the latter timeframe is reduced to 15 days in proceedings with detained suspects. All documents not voluntarily rendered may be apprehended by court order.

In Portugal, only some activities regarding internal investigations are regulated.

For instance, financial institutions and auditors shall maintain an independent, permanent and effective “compliance function” to monitor and enforce internal control procedures to prevent and combat anti-money laundering and other offences.

The Bank of Portugal and the Portuguese Securities Market Commission define several operational requirements for this “function”. It must: adopt an effective risk management model; present several periodic reporting duties; and have a compliance officer to ensure an effective implementation of policies and procedures and adequate controls.

There is not, however, any regulation regarding internal investigations. Therefore, companies may adopt procedures of investigation as they see fit. 

If a company follows an internal investigation, the evidence obtained may be carried over to criminal proceedings and considered by enforcement authorities and courts. However, it is mandatory to respect the legal provisions regarding admission of evidence, found mainly in the Criminal Procedure Code – forbidden methods of obtaining evidence remain applicable. 

Law No 144/99, 31 August 1999, provides for international judiciary co-operation in criminal matters and governs extradition proceedings.

As stated in the Portuguese Constitution, extradition of Portuguese citizens is, as a rule, prohibited, and shall only be admitted, under the condition of reciprocity, in cases of terrorism and transnational organised crime, as long as the requesting state ensures due process of law.

Portugal is also a signatory of several international agreements and treaties regarding international co-operation, which also apply to white-collar offences, notably, the Convention on Cybercrime, the Convention against Corruption and the Convention on Action against Trafficking in Human Beings.

If the Public Prosecutor’s Office, having considered all probatory elements gathered during the investigation, finds that there is sufficient evidence to demonstrate the perpetration of a crime and that it is likely that a penalty or security measure will be further applied to the agent, it prosecutes the defendant. 

It is possible, upon satisfaction of certain conditions, for the Public Prosecutor’s Office and the defendant to agree (with the judge’s approval) on the temporary suspension of the proceedings, pursuant to Articles 281 and 282 of the Criminal Procedure Code. The temporary suspension allows for the resolution of the criminal proceedings without conducting the main trial, by imposing on the defendant injunctions and rules of conduct.

Temporary suspension of the proceedings requires satisfaction of certain conditions:

• the crime must be punishable by imprisonment for a term not exceeding five years, or with a penalty of a different nature;
• both the defendant and the Assistant (Assistente) shall agree on the suspension;
• the defendant shall not have been previously convicted for a crime of the same nature;
• the defendant must not have benefited from a previous temporary suspension of the proceedings for a crime of the same nature;
• the court shall order the security measure of hospitalisation;
• the absence of a high level of culpability; and
• it is likely that the injunctions and rules of conduct are deterrent enough to fulfil the prevention demands.

Law No 36/94, 29 September 1994, which establishes measures applicable to the fight against corruption and economic and financial criminality, provides that, in proceedings involving active corruption in the public sector, the temporary suspension of the procedure may only be offered to a defendant when they were the one reporting the offence, or when the Public Prosecutor considers them to have made a decisive contribution towards the verdict finding.

It remains necessary for the defendant to agree with the suspension and that it is likely that the injunction and the rules of conduct will be deterrent enough to fulfil the prevention demands in the concrete case.

For the time being, it is not possible for the defendant to have a plea bargain – the defendant cannot negotiate the sentence or its execution with the judge.

However, Law No 94/2021 has recently approved some mechanisms of collaboration with the defendant.

A penalty waiver may now be available in some circumstances, in cases of corruption and undue receipt of advantage, where the defendant reported the crime before the beginning of the proceedings. The defendant must refund or reject the advantages offered or, in cases of active corruption, withdraw the promises previously offered.

The Portuguese Commercial Company Code establishes a series of both criminal and regulatory offences (Articles 509 and 529), such as the following.

• A manager or administrator who omits mandatory acts for share capital inflows is punishable by a fine not exceeding 60 days. If there is an intention to jeopardise a partner, the company or a third party, the applicable fine shall not exceed 120 days.
• A manager or administrator who unlawfully subscribes or acquires in favour of the company, the company’s own shares, or instructs another to do the same is punishable by a fine not exceeding 120 days.
• A manager who unlawfully redeems a not-released share is punishable by a fine not exceeding 120 days.
• A manager who redeems or proposes to redeem, totally or partially, a share with a right of use or with a pledge, is punishable by a fine not exceeding 120 days.
• A manager or administrator who unlawfully proposes, during a general meeting, an illegal assets distribution is punishable by a fine not exceeding 60 days or 120 days if the distribution is made without the shareholders’ approval.
• Those in charge of the notice of a general meeting who do not do so within the mandatory deadlines or with the mandatory formalities, established by law or contract, are punishable by a fine not exceeding 30 days. 
• Those who participate in a general meeting while pretending to be shareholders and vote accordingly are punishable by a fine not exceeding 90 days.
• A manager or administrator who excludes the possibility of consultation of documents which, according to law, shall remain at the shareholders’ disposal in order to prepare a general meeting, or who sends documents without complying with the legal requirements and deadlines, is punishable by a fine not exceeding 60 days or 90 days, if the dismissal takes place during a general meeting. 
• Those responsible for providing information on the company’s business who provide false or insufficient information, suitable to mislead the recipient, are punishable by a fine not exceeding 60 days. If the false information is provided to jeopardise a shareholder, the applicable penalty is a fine not exceeding 90 days or imprisonment for a term not exceeding six months. If this conduct generates serious damages to the shareholders, the agent is punishable by a fine not exceeding 120 days or imprisonment for a term not exceeding three years. 
• Those responsible for calling a general meeting who provide false information therein are punishable by a fine not exceeding 150 days and imprisonment for a term not exceeding six months. If the perpetrator intends to jeopardise a shareholder, they are punishable by a fine not exceeding 180 days or imprisonment for a term not exceeding one year.
• Those who are obliged to write or sign the minute of the general meeting and, without justification, do not do so, or who prevent someone responsible from signing or writing it, are punishable by a fine not exceeding 120 days.

• A manager or administrator who prevents or hampers the necessary acts regarding the due auditing of the company is punishable by a fine not exceeding 120 days or imprisonment for a term not exceeding six months.

• A company that does not have a stock register or does not meet the legal requirements regarding the record and deposit of the shares is punishable by a fine of between EUR500 and EUR49,879.79.

Bribery

A bribe (ie, an undue advantage) is defined as a monetary or non-monetary advantage which somehow benefits the individual who receives it, without any legal ground or justification.

Bribery is criminalised through the following criminal offences:

• undue receipt of an advantage (Article 372 of the Criminal Code);
• undue receipt of an advantage by a political person or a high public official (Article 16 of Law No 34/87, 16 July 1987); and
• undue receipt of an advantage in the context of sports competitions (Article 8 of Law No 50/2007, 31 August 2007).

When a public official is involved, bribery may qualify as an undue receipt of an advantage, pursuant to Article 372 of the Criminal Code and Article 16 of Law No 34/87, even if the main goal behind the promise of an advantage is not fulfilled.

Active and Passive Corruption – Articles 374 and 375 of the Criminal Code

Portuguese legislation establishes the following criminal offences in the context of corruption:

• passive and active corruption of political and high public officials (Articles 17 and 18 of Law No 34/87, 16 July 1987);
• passive and active corruption in the public sector (Articles 373 and 374 of the Criminal Code);
• passive and active corruption in the private sector (Articles 8 and 9 of Law No 20/2008, 21 April 2008);
• active corruption in international commerce (Article 7 of Law No 20/2008, 29 January 2008);
• passive and active corruption in the context of sports competitions (Articles 9 and 10-A of Law No 50/2007, 31 August 2007); and
• active and passive corruption of an individual serving in the armed forces or other military force (Articles 36 and 37 of Law No 100/2003, 15 November 2003).

Active and passive corruption may be defined as giving/promising, on one hand, or requesting/accepting, on the other, an undue advantage – patrimonial or not – conditional on the performance of a certain action or omission (quid pro quo).

Hospitality and promotional expenditures, as well as facilitation payments, may be regarded as a bribe, particularly in contexts where they appear to be consideration for an action or omission to be performed. These conducts, however, do not fall within the concept of bribe if they are viewed as socially adequate.

Article 386 of the Criminal Code provides a very broad definition of “public official”, including politicians, civil servants, administrative agents, arbitrators, jurors and experts, members of managing or supervisory bodies or workers of state-owned or state-related companies, among others.

Bribery of foreign public officials is also criminalised, under Article 7 of Law No 20/2008. Active corruption in the context of international commerce is punishable when someone gives or promises to give an undue advantage to a national or foreign public official, or to an official from an international organisation, or to a third party with consent or ratification from any of the previously mentioned groups of individuals, as a means to obtain or maintain a business, a contract or another undue advantage within international commerce.

Regarding private parties, active corruption is covered under Article 9 of Law No 8/2020. Those who promise to give or give out an undue advantage to a private-sector worker, or to a third party with their consent or ratification, in order to obtain an action or omission constituting a violation of the private worker’s professional duties, are punishable by a fine or imprisonment up to three years. If the action or omission executed by the private-sector worker in return for the undue advantage is capable of distorting competition or causing economic losses for third parties, the agent is punishable by a fine not exceeding 600 days or imprisonment up to five years.

Passive corruption is also punishable. A private-sector worker who, acting on their own behalf or through an intermediary, demands or accepts, for themselves or for a third person, an undue advantage, or the promise thereof, in return for performing an action or omission constituting a violation of their professional duties, is punishable by a fine not exceeding 600 days or imprisonment up to five years. If the worker acts in a way capable of distorting competition or jeopardising third parties, they are punishable by imprisonment for up to eight years.

Influence Peddling

Influence peddling, pursuant to Article 335 of the Criminal Code, is a criminal offence of a general nature for which any person – whether or not a public official – may be held liable.

As a result, whoever asks or accepts a monetary or non-monetary advantage, or the promise of an advantage, in order to abuse their influence over public entities to obtain an unlawful favourable decision, is punishable by a term of imprisonment of between one and five years. If the goal is to obtain a lawful favourable decision, the penalty is imprisonment up to three years or a fine.

Those who give or promise a monetary or non-monetary advantage in order to obtain an illicit favourable decision are punishable by imprisonment up to three years or a fine.

Portuguese law does not impose a general duty to report bribery. Nevertheless, the failure to report imminent bribery or corruption practices by those who assume a leading position within an organisation (and are therefore bound by law to prevent unlawful outputs), may result in the liability of the company itself and the omitting agent.

Moreover, pursuant to the recently approved Law No 93/2021, companies with more than 50 employees have the obligation of creating and installing whistle-blowing channels, allowing for the investigation of reports of corruption and related infractions, such as bribery.

The Portuguese Companies Code provides that the company’s statutory auditor and the members of its supervisory board, as well as the chairman of the audit committee (in case of limited liability companies), shall communicate to the Public Prosecutor’s Office any criminal suspicions which have come to their knowledge and which may constitute a crime of procedural public nature, as it is the case of corruption.

Most offences related to banking law have a regulatory nature. This notwithstanding, some criminal offences are established by Portuguese law.

Furthermore, insider dealing and market abuse are forbidden.

The Portuguese Securities Code regulates insider dealing pursuant to Article 378 and sets out a general prohibition of the misuse of inside information. Under Article 378, whoever holds inside information (by virtue of being a member of the governing bodies of a company; of the labour and services provided; of a public employment; of an unlawful conduct) and discloses it to someone outside the normal course of their duties, or, based on that information, trades or advises someone to cancel orders or to trade in securities or other financial instruments, is punishable by a fine or imprisonment up to five years.

Moreover, Article 379 of the Portuguese Securities Code forbids market manipulation, such as (i) disclosure of false, incomplete, exaggerated, or biased information, (ii) carrying out operations of a fictitious nature, and (iii) execution of other fraudulent practices which may artificially alter the regular functioning of the securities market or other financial instruments. Violation of the Code is punishable by a fine or imprisonment for up to five years. If the conduct causes or contributes to an artificial change in the regular functioning of the market, the offender is punishable by a fine not exceeding 600 days or imprisonment up to eight years. 

Acts that are likely to modify the pricing conditions, normal conditions for supply or demand of securities or other financial instruments, normal conditions for the launching and acceptance of a public offer or acts likely to disrupt or delay trading system operations, are deemed likely to artificially alter normal market operations.

Article 380 provides for additional penalties regarding the offences of insider dealing and market manipulation:

• prohibition on practising or performing the professional activities related to the criminal offences, including a ban on performing duties in administration and supervisory bodies, for a period not exceeding five years;
• prohibition on financial instrument trading on one’s own account for a period not exceeding 12 months;
• cancellation of the registration or withdrawal of the authorisation to perform administration, management, supervision and leadership duties in entities subject to CMVM’s supervision; and
• publication of the conviction at the expense of the accused.

The General Regime for Credit Institutions and Financial Companies (Regime Geral das Instituições de Crédito e Sociedades Financeiras) establishes some criminal offences in the field of banking law.

Pursuant to Article 200, whoever receives from the public, on its own behalf or on behalf of a third party, deposits or other refundable funds, without having the necessary authorisation, is punishable by imprisonment not exceeding five years.

The Criminal Code, under Article 195, also protects professional secrets through the criminalisation of secrecy violation. Whoever reveals another’s secret, which has come to their knowledge by virtue of their occupation, is punishable by a fine not exceeding 240 days or imprisonment up to one year.

However, the majority of banking law offences are of regulatory nature. The General Regime for Credit Institutions and Financial Companies provides, pursuant to Articles 210 and 211, for a series of offences within the banking area.

For example: the exercise of activity without observing the Bank of Portugal’s registration rules; the infringement of rules concerning deadlines, amounts and representation regarding subscription or realisation of share capital; the omission, within legal deadlines, of mandatory publications, are punishable by fines of between EUR3,000 and EUR1.5 million for legal persons and between EUR1,000 and EUR500,000 for natural persons.

Fraudulent realisation of share capital and deliberate acts of ruinous management, harmful to depositors, investors and other creditors, practised by corporate members are examples of infractions deemed as especially serious, and are punishable by fines of between EUR10,000 and EUR5 million for legal persons and between EUR4,000 and EUR5 million for natural persons.

Tax fraud can be deemed as the non-liquidation, delivery or payment of a due tax or the undue obtainment of tax benefits, refunds or other material advantages susceptible to causing a decrease in tax revenues. It is executed through:

• concealment or change of facts or values that should be included in the accounting books, or in the declarations presented to the tax administration;
• concealment of undeclared facts or values that must be disclosed to the tax administration;
• execution of simulated transactions, either in terms of value, nature or through the interposition, omission or substitution of people.

The crime of tax fraud is foreseen under Article 103 of the General Regime of Tax Infringements (Regime geral de infrações tributárias) and it is punishable, if the legal advantage exceeds EUR1,500, by imprisonment of up to three years or a fine up to 360 days.

Aggravated fraud is provided for under Article 104, and it is punishable by imprisonment of between one and five years for natural persons, and a fine of between 240 and 1,200 days for legal persons. Some examples of aggravated fraud are: (i) the material advantage exceeds EUR50,000; (ii) the fraud takes place through use of invoices or equivalent documents of non-existent operations or with altered values, or with the intervention of people or entities different from those of the underlying transaction; (iii) the offender is a public official and infringed their obligations.

Article 256 of the Portuguese Criminal Code criminalises document forgery, which includes the act of forgery of financial records. Therefore, whoever elaborates false financial records to the detriment of the state or any other person, with the intention of obtaining an unlawful advantage, is punishable by imprisonment for up to three years or by a fine.

Moreover, Article 379-E of the Portuguese Securities Code establishes a criminal offence for the use of false or misleading information during fund raising, punishable by a term of imprisonment not exceeding eight years. 

Negligent behaviour is also punishable, although the applicable penalty is reduced by one half.

The General Regime for Credit Institutions and Financial Companies establishes as a regulatory offence the forgery of financial statements and the lack of organised book-keeping, as well as the infringement of the applicable accounting rules determined by law or by the Bank of Portugal, punishable by a fine of between EUR10,000 and EUR5 million, in the case of legal persons, and EUR4,000 and EUR5 million for natural persons.

In Portugal, the Competition Authority is responsible for the detection, investigation and punishment of restrictive competition practices, which include agreements, concerted practices and decisions made by business associations that have, as an effect, the prevention, distortion or restriction of the competition in all or part of the national market. Cartels are an example of these practices, as well as agreements which share markets or sources of supply.

Competition law also prohibits the abuse of dominant market positions (eg, refusal to supply or provide access to essential facilities) and abuse of economic dependence (eg, unjustified termination of an established business relationship).

In case of an infraction, the Competition Authority may impose a fine, which shall not exceed 10% of the turnover carried out in the fiscal year immediately preceding the final condemnatory decision, in the case of independent companies or, in the case of an association of companies, the aggregated turnover of the group.

In the field of consumer law, some regulatory offences are provided for regarding the Portuguese complaints book (Livro de Reclamações), which allows any consumer to report in writing a complaint about a commercial establishment or a service provider.

Pursuant to Decree-Law No 156/2005, 15 September 2022, any establishment that: (i) does not have a complaints book; (ii) does not provide the necessary information for the consumer to file the complaint; or (iii) does not send the complaint to the competent authority within 15 days, commits a regulatory offence and may be subject to the payment of a fine.

Law No 109/2009, 15 September 2009 (Lei do Cibercrime), provides for a number of criminal offences regarding cybercrime.

• Computer-related forgery – whoever inputs, alters or deletes computer data, or, in any way, interferes with computer processing, resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, is punishable by imprisonment not exceeding five years or a fine of between 120 and 600 days. Whoever uses the inauthentic data or documents, with the intention to harm others or to obtain an unlawful benefit, is also punishable.
• Computer-related fraud – whoever, without right, deletes, alters or destroys, totally or partially, or, in away way, interferes with the functioning of a computer system, is punishable by imprisonment not exceeding three years or a fine.
• System interference – whoever, without right, seriously hinders the functioning of a computer system, by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data, is punishable by imprisonment not exceeding five years or a fine not exceeding 600 days.
• Illegal access – whoever accesses the whole or any part of a computer system without right is punishable by imprisonment not exceeding one year or a fine not exceeding 120 days. 
• Illegal interception – whoever intercepts, without right, through technical means, non-public transmissions of computer data to, from or within a computer system, is punishable by imprisonment not exceeding three years or a fine.
• Illegal reproduction of a protected program – whoever reproduces, discloses or communicates to the public a protected informatic program is punishable by imprisonment not exceeding three years or a fine. 

Regarding secret violation, see 3.4 Insider Dealing, Market Abuse and Criminal Banking Law.

The main offences related to financial crime are:

• fraud (see 3.5 Tax Fraud);
• electronic crime (see 3.9 Cybercrimes, Computer Fraud and Protection of Company Secrets);
• money laundering (see 3.13 Money Laundering);
• terrorist financing (Article 5A of Law No 52/2003, 22 August 2003, punishable by imprisonment for eight to 15 years);
• bribery and corruption (3.2 Bribery, Influence Peddling and Related Offences); and
• market abuse and insider dealing (3.4 Insider Dealing, Market Abuse and Criminal Banking Law).

The main offences related to illegal trade are those including drugs, human beings (Article 160 of Criminal Code), weapons (Article 87 of Law No 5/2006, 23 February 2006), wildlife and timber (Convention on International Trade in Endangered Species of Wild Fauna and Flora).

Buying and selling goods in cyberspace – involving, for example, passwords, botnets and malware – may also qualify as illegal trade.

Pursuant to Article 227 of the Criminal Code, whoever, with the intention of jeopardising creditors, (i) destroys, damages, impairs or causes to disappear part of their assets; (ii) fictitiously decreases their assets; (iii) fictitiously creates or aggravates losses, or reduces profits, is punishable by imprisonment not exceeding five years or of a fine not exceeding 600 days, if insolvency is judicially recognised.

Moreover, according to Article 227-A of the Criminal Code, whoever, after an enforceable sentence, destroys, damages, causes to disappear, conceals or hides part of their assets in order to frustrate the payment of a debt, is punishable, if enforcement proceedings are initiated and the creditor’s rights are not fully satisfied, by imprisonment not exceeding three years or a fine.

A criminal offence is committed not only by the immediate perpetrator (ie, the one executing the offence), but also by any person who agreed to take part in the execution, as well as by any person directing another to the commission of a crime, as long as the acts of execution have taken place.

Moreover, any person who deliberately provides material or moral assistance to the immediate perpetrator will be punishable as an accomplice.

Criminal Offences

The Portuguese Criminal Code, under Article 368-A, criminalises money laundering, as the concealment of income originating from the precedent criminal offences foreseen under No 1: pimping; sexual abuse of children; extortion; trafficking of drugs, weapons or protected species; tax fraud; influence peddling; and corruption, among others.

Those who convert, transfer, assist or facilitate any conversion operation or the transfer of profits while knowing the funds were the proceeds of unlawful activity, with the intention of disguising its unlawful origin or preventing the offender from being prosecuted or subject to punishment, are punishable by imprisonment for between two and 12 years.

In case of legal entities, the imprisonment sentence is converted to a fine. One month of imprisonment corresponds to a ten-day fine, and each day of fine corresponds to an amount between EUR100 and EUR10,000, which the court shall set depending on the economic and financial situation of the convicted entity and its expenses with employees.

There are several entities which are responsible for investigations related to money laundering, such as the Bank of Portugal, the Portuguese Securities Market Commission (CMVM), the Tax Authority and the Registry and Notary Office.

These entities impose regulations within their fields of operation which aim at ensuring an adequate compliance with the obligations imposed by Law No 83/2017, 18 August 2017 that provides for measures against money laundering and the financing of terrorism.

Law No 83/2017 provides for the following criminal offences:

• illegitimate disclosure of information, communications or internal analyses, notably communications with judicial authorities regarding suspicions of money laundering, to clients or third parties (Article 157);
• enabling the disclosure of the identity of the whistle-blower who provided information, documents or elements concerning suspicious transactions (Article 158); and
• non-compliance with orders or legitimate instructions arising from administrative authorities, or creating obstacles against the execution of such orders/instructions.

Moreover, there is provision for a series of regulatory offences.

In addition to monetary fines, regulatory offences may entail additional sanctions such as:

• loss to the state, of the object of the offence and the economic benefit derived from it;
• closure of the establishment where the agent pursues their activity, or any job related to the offence, for a period not exceeding two years;
• prohibition from exercising a professional activity, or any job related to the offence, for a period of up to three years;
• prohibition from exercising certain management and representative functions, among others, within the governing bodies of entities subject to the supervision and/or control of a regulatory authority, for a period of up to three years; and
• publication of the definitive conviction.

A defendant charged with a white-collar crime has the same rights as any other defendant taking part in other criminal proceedings, pursuant to the fundamental principle of the presumption of innocence and its interplay in dubio pro reo.

The criminal liability of legal persons may be excluded where:

• the individual – material perpetrator – who executed the offence acted against express orders or instructions given by the authorised members of the company;
• it is demonstrated that the criminally relevant act or omission was not perpetrated on behalf of, or in the interest of, the company; and
• there was no infringement of vigilance and control duties by a person in a leadership position.

Also, a conduct is excluded from criminal legal relevance if it is considered to be socially adequate and in line with habits and normal practices.

The existence of an effective compliance programme may work as a defence mechanism, since the programme itself may be understood to be express orders or instructions provided by the company.

There are no exceptions for white-collar offences in the Portuguese jurisdiction.

Self-disclosure and co-operation may be regarded as mitigating factors, especially when they have made a decisive contribution towards the unveiling of the truth.

Other common leniency measures include acting under the influence of a serious threat, acting on demand of another party, and demonstrations of regret.

Moreover, pursuant to Article 368-A, full compensation for the damages caused to the offended before the beginning of the trial phase, is foreseen as a mitigating circumstance.

Finally, in the context of corruption in the public sector and undue receipt of an advantage, the offender may not be punished if they self-reported the crime within 30 days of its occurrence and if they deliberately rejected the undue advantage previously accepted or returned it before the act or omission took place. The same applies to the offender who withdraws the promise, refuses its offering, or requests its return before the act or omission take place.

It is possible for the penalty to be mitigated if the perpetrator helps to obtain evidence or to capture other responsible agents.

Whistle-blowers are expressly protected by Law against retaliation acts, which are defined as any act susceptible of causing the whistle-blower damages as a consequence of a report. Law No 93/2021 establishes some presumptions of retaliation acts, such as the modification of work conditions, a negative evaluation of the employee’s performance, a suspension of the work contract, and dismissal, among others.

The identity of the whistle-blower, as well as any other information which might help to disclose their identity, shall remain completely confidential throughout the process of investigation.

Companies are under the obligation of implementing whistle-blowing channels which help promote a transparent, upstanding environment and allow for the anonymity of the whistle-blowers. 

Moreover, in the context of legal proceedings, special measures for the protection of witnesses may be adopted.

The Portuguese Constitution establishes, under Article 32, No 2, the principle in dubio pro reo, meaning that, in case of doubt, the criminal case shall be decided in favour of the defendant, a solution which is in line with the principle of presumption of innocence.

Therefore, for a defendant to be found guilty, there must be sufficient evidence in the process for the conviction.

The Public Prosecutor’s Office gathers the evidence related to the crime and must prove each element of the crime beyond reasonable doubt. The defendant may also carry evidence to the proceedings.

The Portuguese Procedure Code establishes a general principle of free appreciation of the evidence provided in the process, although there are some bounding criteria applicable to some means of evidence (eg, experts’ opinions).

When a defendant is deemed guilty of a white-collar offence, punishable with a penalty of imprisonment or any other that does not imply loss of freedom, the court is bound to choose the second option if it is deemed as adequate and sufficient for the case.

When determining the actual penalty, within the legal framework, the court shall consider all relevant circumstances surrounding the offence: for instance, the seriousness of the offence, the manner of its execution, its consequences, the infringement of the duties imposed, and the offender’s personal conditions and economic situation.

It is also possible for the penalty to be specially reduced or even dismissed if the crime is punishable by imprisonment for a period not exceeding six months, or by a fine not exceeding 120 days.

For the court to waive the enforcement of a penalty, it is necessary that:

• the seriousness of the offence and the guilt of the offender are diminished;
• the damage has been repaired; and
• there is an absence of social demands.

On the other hand, recidivism is valued as an aggravating circumstance.