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Portugal

Anti-Bribery and Corruption Laws in Portugal

Table of contents
Portugal
Source  of law Criminal Code Law no. 20 / 2008, of April  21 
Offence 

Unlawfully  receiving  an advantage: 

  • It is a crime for an official (in the exercise of his functions or because of them), to solicit or accept, by himself or through an intermediary, with its consent or ratification, for himself or for a third party, an undue advantage. 
  • To offer or promise, individually or through an intermediary with its consent or ratification, any undue advantage to an official or to a third person (by indication or knowledge of an official), during the  course of its functions or because of those functions - with exception to offers that are socially  adequate. 

Passive corruption 

It is an offence for an official, by himself or through an intermediary, with his consent or ratification, to solicit or accept, for himself or for a third party, an advantage, or its promise, in order to act or fail to act in a way that violates the duties of the office, even if committed prior to such solicitation or acceptance. 

Active corruption 

It is an offence to give or promise to an official, directly or through an intermediary, with his consent or ratification, an advantage for the purposes referred to in the crime of passive corruption. The mere attempt is punishable. 

Active corruption in damage of international commerce: To give or promise to give to an official, (whether national, foreign or from an international organisation) or to a holder of political office (national or foreign) or to a third person if any of the above mentioned persons knows of this offer or promise, an undue advantage, in order to obtain or retain a business, a contract or any undue advantage in international commerce. 

Passive corruption in the private sector 

A private sector employee or agent, who, by himself or through an intermediary, with his consent or ratification, accepts, for himself or for a third party, undue financial or non-material advantage, or its promise, in order to act or fail to act in a way that violates its functional duties. 

Active corruption in the private sector 

To give or promise to a private sector employee or agent, by oneself or through an intermediary with its consent or ratification, or to a third party with the knowledge of the employee or agent of such a gift or promise, an undue advantage in order to induce an action or an omission from that employee or agent in violation of its functional duties. The mere attempt is punishable. 

The bribe   
Is there a presumption that any advantage was given/received corruptly? NoNo
Would facilitation payments be caught? Depends on intent Depends on intent 
Would corporate hospitality be caught? Depends on intent 1 Regarding the offence of unlawful receiving of an advantage, the law specifically states that socially adequate conduct in conformity with traditions and customs is not punishable  Depends on intent 
Is there any de minimis? No  2 Although the gift cannot be so small that it is not considered an “advantage”.  No  2  Although the gift cannot be so small that it is not considered an “advantage”.
Does the bribe have to be monetary? NoNo
Public officials   
Does the offence only apply to bribing public officials? Yes  3 Though if the perpetrator receives aid or cooperation in the perpetration of the offence by someone who is not an official, they may also be liable for such participation.  

Yes  (for the crime of active corruption in damage of international commerce) 

No (for the crimes of corruption in the private sector) 

Acts  performed  outside Portugal   
Can bribery performed outside Portugal be caught? Yes  4 Though in only a few specific circumstances included in Article 5 (1), b), e), f) and g) of the Portuguese Criminal Code, for example, (i) if the victim and perpetrator are Portuguese, live in Portugal at the time the offence is committed and the perpetrator is captured in Portuguese territory or (ii) if the offence is committed against a Portuguese victim by a Portuguese or foreign perpetrator who is captured in Portugal, where the offence is punishable in the country in which it was perpetrated and the facts that constitute the offence allow for extradition of the perpetrator and the extradition cannot be granted or when the Portuguese authorities decide not to surrender the subject in execution of an European arrest warrant or of any other legal instrument of international cooperation that binds the Portuguese State. Yes  6  In addition to the circumstances included in Article 5 (1) above, the perpetrator may also be caught outside the jurisdiction in the circumstances mentioned in Article 3 of Law no. 20 / 2008, of 21 April, for example, in cases of active corruption in international commerce where the perpetrator, whether foreign or Portuguese, is captured in Portuguese territory or in cases of active or passive corruption in the private sector if the perpetrator is a public servant or the holder of any political office, or both a Portuguese national and an employee of a public international organisation.
Does the act also need to be illegal in the foreign country of performance? NoNo
Who can be liable   
Portuguese National? 

 

Yes  

 

Yes  

Company incorporated in Portugal? 

 

Yes  

 

Yes  

Partnership (including limited liability partnership) incorporated in Portugal? Yes  (as long as it has legal personality, for example, a branch) Yes  (as long as it has legal  personality) 
Director of company incorporated in Portugal? 

 

Yes  

 

Yes  

Company incorporated in Portugal if the bribe is committed abroad by its foreign subsidiary? Yes  (only if the subsidiary company does not have legal personality) Yes  (only if the subsidiary company does not have legal personality) 
Foreign subsidiary of a company incorporated in Portugal if the bribe is committed abroad? NoNo
Foreign national / company / partnership if the bribe is committed in Portugal? 

 

Yes 

 

Yes  

Foreign national domiciled or “ordinarily resident” in Portugal if the bribe is committed outside Portugal? 

 

Yes  

 

Yes  

Foreign company / partnership if bribe is committed abroad? NoNo 
Penalties Criminal Code Law no. 20/2008, of April 21  
Penalties include: 
  • For the crime of unlawful receiving of an advantage: 
    • Up to five years imprisonment or a fine of up to 600 days  5 The fine applicable to legal and natural persons is calculated in a variable amount by reference to the number of days in prison applicable to natural persons. The amount will be calculated taking into consideration the economic and financial status of the defendant, as well as its expenses.  
    • Up to three years imprisonment or a fine of up to 360 days respectively 
  • For the crime of passive corruption: one to eight years imprisonment 
  • For the crime of active corruption: one to five years imprisonment 
  • If the act or omission is not contrary to the duties of the office and the advantage is undue, the penalty will be from one to five years’ imprisonment for the crime of passive corruption and up to three years’ imprisonment or a fine of up to 360 days for the crime of active corruption. 
  • If the advantage exceeds EUR 5.1m, the penalty shall be aggravated by one quarter in its minimum and  maximum; if the advantage exceeds EUR 20.4m, the penalty shall be aggravated by one third in its minimum and maximum 
  • For the crime of corruption in international commerce: one to eight years imprisonment 
  • For the crime of active corruption in the private sector: 
    • Up to three years imprisonment or a fine 
    • If the conduct is apt to produce a distortion in competition or causes damages to a third party, up to five years imprisonment or a fine of up to 600 days 
  • For the crime of passive corruption in the private sector: 
    • Up to five years imprisonment or a fine of up to 600 days 
    • If the conduct is apt to produce a distortion in competition or causes damages to a third party, up to eight years imprisonment 
Defences   
Are there any defences available? 
  • The company can avoid liability if it can demonstrate that the criminally relevant act or omission was not perpetrated on its behalf or collective interest and that there were no violations of any duties of due diligence or control by the person with a leadership position responsible for these duties 
  • The company may also avoid liability if it can demonstrate that the perpetrator acted against orders or express instructions provided by those with the authority and capacity to do so 
  • The company can avoid liability if it can demonstrate that the criminally relevant act or omission was not perpetrated on its behalf or collective interest and that there were no violations of any duties of due diligence or control by the person with a leadership position responsible for these duties 
  • The company may also avoid liability if it can demonstrate that the perpetrator acted against orders or express instructions provided by those with the authority and capacity to do so