Corruption is unlawful under:

• the Portuguese Criminal Code
• the Law on the Crimes of the Responsibility of the Holders of Political Positions; 
• the Criminal Regime on Bribery in the International Commerce and Private Sector 
• the Legal Framework for Unsportsmanlike Conduct Criminal Liability
• the Military Justice Code.

Portuguese Criminal Code (“PCC”)

Articles 372, 373 and 374 of the PCC prohibit: 

• the solicitation or acceptance of an undue benefit, whether directly or indirectly, by an official performing their activity or due to their activity;
• the offer or promise of an undue benefit, whether directly or indirectly, to an official performing their activity or due to their activity; 
• the solicitation or acceptance of a benefit or a promise of a benefit, whether directly or indirectly, by an official in exchange for the execution of an act or the omission of an act, regardless whether relating to acts or omissions that breach the official’s duty (passive bribery); and
• the offer or promise of a benefit, whether directly or indirectly, to an official in exchange for the execution of an act or the omission of an act, regardless whether relating to acts or omissions that breach the official’s duty (active bribery).

The prohibitions extend to bribes made to third parties with the consent of an official.

This regime applies not only to Portuguese public officials, but also to certain officials of international organisations and to judges and officials of international courts, provided that Portugal recognises the jurisdiction of said court. 

If the relevant acts are committed in whole or in part in Portugal, these prohibitions shall also apply to officials of foreign states as well as to those who exercise functions in out-of-court dispute resolution procedures, irrespective of their nationality or country of residence, and to foreign arbitrators and juries. 

The PCC also prohibits the offer or promise of a benefit to or the solicitation or acceptance of a benefit by any person in exchange for the exertion of a real or supposed influence over any public entity (so called “influence peddling” or “trading in influence”).

Law on the Crimes of the Responsibility of the Holders of Political Positions (“RHPP”)

The RHPP sets out a specific legal framework applicable to individuals holding political positions or high public offices. If the relevant acts are committed in whole or in part in Portugal, the RHPP will apply to individuals holding political positions in international organisations or in foreign states. 

Criminal Regime on Bribery in the International Commerce and Private Sector (“BICPS”)

In what concerns bribery in international commerce, the BICPS prohibits the offer or promise of a benefit to a Portuguese or foreign state official, to an official of an international organisation, to a holder of a political position in Portugal or abroad and to any other person if one of those individuals is aware of that fact, in exchange for obtaining or maintaining a transaction, contract or any undue advantage in international commerce. 

As to bribery in the private sector, the BICPS prohibits the offer or promise of an undue benefit to, or the solicitation or acceptance of a benefit by, an employee of a private company or other private legal entity in exchange for the execution of an act, or the omission of an act, which is contrary to such employee’s duties. The offence is deemed to be more serious if it has the effect of distorting competition or causing loss to third parties. This prohibition applies to foreign employees of private companies (subject to the requirements outlined below).

Legal Framework for Unsportsmanlike Conduct Criminal Liability (“UCCL”)

The UCCL sets out a specific legal framework relating to the criminal liability for conduct and behaviour that may impact on the truth, loyalty and correctness of sports competitions and results. The UCCL sets out the crimes of passive and active bribery in similar terms to those set out in the PCC, being the offer/promise or solicitation/acceptance of an undue benefit in exchange for the execution of an action/omission in order to alter or falsify the results of a sports competition. This unsportsmanlike conduct criminal liability applies to both individuals and companies that undertake any corruption-related conduct.

The UCCL also prohibits the offer or promise of a benefit to or the solicitation or acceptance of a benefit by any person in exchange for the exertion of a real or supposed influence over any sports agent, aimed at obtaining a specific result or falsifying the result of a sports competition (similar to the “influence peddling” or “trading in influence” framework under the PCC).

Military Justice Code (“MJC”)

The MJC applies to all criminal activities of a military nature and sets out to safeguard the military interests of national defence and all other competences delegated to the Military Forces by the Portuguese Constitution. The MJC sets out the crimes of passive and active bribery in similar terms to the ones set out in the PCC, as the offer/promise or solicitation/acceptance of an undue benefit in exchange for the execution of an action/omission in breach of a military official’s duties, which results in a threat to national safety.

As a general rule, Portuguese criminal law is applicable to acts committed in Portugal.

However, Portuguese criminal law is also applicable to acts committed outside Portugal:

• when the crime is committed against Portuguese citizens, by Portuguese citizens who, at the time of occurrence, reside and are located in Portugal
• when the crime is committed by Portuguese citizens, or by foreigners against Portuguese citizens, whenever:
  • the perpetrators are located in Portugal
  • the acts are punishable according to the law of the place where they were committed, and
  • extradition is refused or delivery up is not granted pursuant to a European Arrest Warrant or an instrument for international cooperation that is binding on Portugal
• by foreigners located in Portugal where extradition is refused or delivery up is not granted pursuant to a European arrest warrant or an instrument for international cooperation that is binding on Portugal
• by or against corporate entities which seat is located Portugal.

Portuguese criminal law also applies to acts committed outside Portugal when those acts amount to certain crimes such as, for example, influence peddling.

The BICPS applies (i) to Portuguese citizens and foreigners found in Portugal, regardless of the place where the relevant acts occurred, in case of bribery in international commerce, and (ii) to Portuguese officers or holders of political positions in Portugal or Portuguese citizens holding an office in an international organization, regardless of the place where the relevant acts occurred, in case of bribery in the private sector.  

The MCJ applies to crimes that occur both in Portugal and abroad as long as, for a crime that occurred abroad and was committed by a foreigner, that foreigner is located in Portugal.

In relation to acts occurring in Portugal or (subject to the requirements outlined above) abroad, the prohibitions apply to both natural persons and legal entities.

The following penalties/fines apply:

• in cases of solicitation or acceptance of an undue benefit by an official performing their activity or due to their activity, the penalty is imprisonment for up to five years or a fine of up to €300,000;
• in cases of the offer or promise of an undue benefit to an official performing their activity or due to their activity, the penalty is imprisonment for up to three years or a fine of up to €180,000 if the perpetrator is a natural person, or of up to €3,600,000 if the perpetrator is a company or any other legal entity; 
• in cases of solicitation or acceptance of a benefit or a promise of a benefit by an official in exchange for the execution of an act or the omission of an act, the penalty is imprisonment for up to five years if the act or omission does not breach the official’s duty, or imprisonment for up to eight years if the act or omission breaches the official’s duty;
• in cases of the offer or promise of a benefit, whether directly or indirectly, to an official in exchange for the execution of an act or the omission of an act, the penalty is imprisonment for up to three years or a fine of up to €180,000 (or of up to €3,600,000 if the perpetrator is a company or any other legal entity) if the act or omission does not breach the official’s duty, or imprisonment for up to five years (or a fine of up to €6,000,000 if the perpetrator is a company or any other legal entity) if the act or omission breaches the official’s duty.

The PCC provides for higher penalties depending on the value of the undue benefit. Therefore, if the value of the undue benefit is higher than €5,100, the maximum penalties and fines are increased by a quarter of the normal limit. Where the value of the undue benefit is higher than €20,400, the maximum penalties and fines are increased by one third of the normal limit.

When the offence is committed by a holder of a political position or a high public office, more severe penalties apply. 

Trading in influence is punishable by (i) imprisonment for up to five years (or a fine of up to €6,000,000 if the perpetrator is a company or any other legal entity) if the purpose is to obtain an unlawful favourable decision, or (ii) imprisonment up to three years or a fine of up to €180,000 (or a fine of up to €3,600,000 if the perpetrator is a company or any other legal entity) if the purpose is to obtain a lawful favourable decision.

Offering or promising a bribe to an official to obtain an advantage in international commerce is punishable with imprisonment for up to eight years.

Bribery in the private sector is punishable (i) in cases of passive bribery, with imprisonment for up to five years or a fine of up to €300,000; (ii) in cases of active bribery, with imprisonment of up to three years or with a fine of up to €180,000 if the perpetrator is a natural person, or of up to €3,600,000 if the perpetrator is a company or other legal entity. If the act is capable of distorting competition or causing loss to third parties, the punishment may rise to up to eight years (passive bribery) or up to five years or a fine of up to €300,000 if the perpetrator is a natural person, or up to €6,000,000 if the perpetrator is a company or other legal entity (active bribery). 

Pursuant to the UCCL, the following penalties/fines apply:

• in cases of solicitation or acceptance of an undue benefit by a sports agent performing their activity or due to their activity, the penalty is imprisonment for up to eight years;
• in cases of the offer or promise of an undue benefit to a sports agent performing their activity or due to their activity, the penalty is imprisonment for up to five years. 

According to the MCJ the following penalties/fines apply: 

• in the case of solicitation or acceptance of an undue benefit by an official from the Military Forces for performing their activity or due to their activity, the penalty is imprisonment for up to ten years. Nevertheless, an official from the Military Forces may be exempted from the application of a penalty where they voluntarily reject or restore the undue benefit before they engage in the act or omission in breach of their duties which would have resulted in the endangering of the national safety;
• in the case of an offer or promise of an undue benefit to an official from the Military Forces performing their activity or due to their activity, the penalty is imprisonment for up to six years. Furthermore, if the offeror or the promisor of the undue benefit is an official from the Military Forces with a higher rank, the penalty increases to imprisonment for up to 12 years. 

Enforcement of foreign corruption offences in Portugal has been low with very few allegations being made and, to our knowledge, not a single prosecution arising therefrom. 

With regard to domestic bribery, the Portuguese Ministry of Justice has reported 609 convictions for corruption between 2010 and 2019, including the convictions of 60 public officials who were given prison sentences. According to information on the National Strategy on Anti-Corruption 2020-2024 , in 2019, 2155 criminal investigations were initiated in relation to corruption and related offences, 170 of which ended in prosecutions. 

Between 2017 and 2019 there was a decreasing trend in both the number of corruption cases reported by the police (which fell by 15%) and cases in which first instance court decisions were reached (which fell by roughly 51%). In that period, the average duration of the case, starting with the commencement of criminal investigations and finishing with first instance court decisions, also diminished from 13 months to nine months. 

The overall approach to law enforcement in corruption cases (both foreign and domestic) has been reported by international organisations (such as the OECD and EU) to be one of the main concerns regarding Portugal and a point that requires further attention. The issues raised relate mainly to the capacity of the judicial system effectively to pursue corruption-related cases, (cases are often not completed in a speedy manner and hardly ever lead to enforcement of final criminal sanctions) and the ability of the specialised units that investigate corruption cases (such as the Central Department of Investigation and Penal Action (“DCIAP”) and the National Anti-Corruption Unit of the criminal police) effectively to deal with complex corruption cases, particularly in the face of resourcing pressures. Nevertheless, and especially since 2014, public awareness of corrupt practices has grown significantly due to the large number of very high-level investigations involving holders of political positions, high public offices and Portuguese companies and their executives being conducted by the Portuguese authorities.

There is no specific law to that effect.

However, article 111 of the PCC provides for the confiscation and forfeiture of the proceeds of criminal offences that represent a wealth increase (economic advantage) for the perpetrator, obtained either by means of transaction or exchange or directly through the criminal conduct and regardless of having been obtained for itself or for a third party. 

In particular, with regard to corrupt practices, Article 7 of Law 5/2002, 11 January 2002, (the Portuguese Law that lays down measures for the control of organised crime and economic/financial crime, sets out that in the event of a criminal conviction for any of the offences included in that category (including active and passive bribery, both domestic and international), the difference between the value of the perpetrator’s assets and that which would be reasonable for such an entity will be presumed to constitute an economic advantage for the purposes of calculating the amount of proceeds of crime to be forfeited. Although seizure can only be ordered after there is a criminal conviction, in active and passive bribery cases, interim seizure of assets to secure payment can be ordered at an early stage of the judicial proceedings (once the Public Prosecutor’s Office charges have been presented), provided that there is strong evidence that the crime alleged was committed.  

As a result of several recent notable criminal cases and corruption scandals faced by Portugal in recent years, corruption is currently one of the main topics of public debate.  

The anti-corruption legal framework has been continuously developed in the last few years in order to meet the best international standards. In this context, several laws were enacted in 2015 which notably increased the scope of application of the legislation concerning active and passive bribery to foreign public officials, officials of international organisations and judges and officials of international courts, and granted some level of protection to whistleblowers, both in the public and private sectors.

Several other institutional anti-corruption measures have been pursued, such as the creation of an independent administrative institution for the prevention of corruption and related offences (the Council for Prevention of Corruption) whose functions include, amongst others, monitoring the enforcement of the relevant laws, the creation of a team specialised in economic and financial crimes team within DCIAP and increase in staff of the National Anti-Corruption Unit of the criminal police. In parallel, several awareness-raising measures have been undertaken, particularly by the Ministry of Justice and DCIAP. 

Nonetheless, Portugal has been criticized by several international organisations (e.g. OECD and Council of Europe (via GRECO)) for being ineffective in enforcing the prohibitions relating to foreign corrupt practices and, despite the measures undertaken by the Portuguese authorities, the concerns about the adequacy of specialised expertise in DCIAP and National Anti-Corruption Unit expressed by those international organisations remains. As noted above, there have been no effective convictions for foreign corruption in Portugal to date, and a number of shortcomings have also been noted regarding the enforcement of domestic anti-corruption laws, well demonstrated by the continuous extensions of the deadlines to complete some very high-level and on-going criminal investigations. Also, in 2016, GRECO advised the Portuguese authorities to introduce a clear corruption prevention perspective into the regulations pertaining to members of parliament, judges and prosecutors, so as to attain tangible results and sustained enforcement.

However, over the last couple of years, corrupt practices have gained increased social visibility and relevance. A number of unprecedented high-profile investigations of corruption cases are proceeding, demonstrating a strong desire on the part of law enforcement authorities to ensure that corrupt practices are effectively sanctioned. In April 2021, the pre-judgment phase of a major corruption prosecution demonstrated the difficulties Portuguese authorities encounter in this regard. Criminal proceedings in which 28 defendants (19 individuals and 9 companies) were accused of 189 crimes (including 24 corruption crimes) and involving holders of political positions, high public offices and Portuguese companies and their executives, were dismissed on the grounds of both prescription and insufficient circumstantial evidence (prova indiciária).

In early 2020, a working group under the supervision of the Ministry of Justice started developing the national strategy on anti-corruption, aimed at defining measures to prevent, detect and suppress the corruption phenomenon in Portugal. The development of this national strategy included the contribution of several public entities, such as, amongst others, the Superior Council of the Judiciary (Conselho Superior da Magistratura), the Lawyers’ Bar Association (Ordem dos Advogados) or the Public Prosecution (Ministério Público). The initial draft of the National Strategy on Anti-Corruption 2020-2024 was approved by the Council of Ministers on 3 September 2020. Following a public consultation, the final version of the National Strategy on Anti-Corruption 2020-2024 was approved by the Council of Ministers Resolution no. 37/2021, dated 18 March 2021, and published in the Official Gazette on 6 April 2021. 

The National Strategy on Anti-Corruption 2020-2024 is currently being implemented through draft legislation no. 90/XIV, which primarily aims to (i) combat corruption (and corruption-related) crimes, (ii) improve the court’s responsiveness in terms of time and efficiency of judicial proceedings and (iii) ensure the appropriateness and effectiveness of criminal sanctions.

Amongst the several amendments to existing legislation (e.g. the Portuguese Criminal Code, the Portuguese Criminal Procedural Code or the Law on the Crimes of the Responsibility of the Holders of Political Positions), the hot topics in this draft legislation include:

• A clear regulation on collaboration with judiciary authorities
  
  Amendments proposed to the Portuguese Criminal Procedural Code allow for the perpetrator of a corrupt act, who cooperates with judiciary authorities, to be exempt from the application of a penalty/fine. However, this option is not available where the undue benefit led to the execution of an act or omission that breached the official’s duties.
  
  For instance, if the perpetrator of a corrupt act reports the crime before the start of the criminal investigation, the exemption from the application of a penalty/fine becomes mandatory. However, if this cooperation happens during the pre-court phases or final court hearing, additional requirements must be met in order for the exemption of the penalty/fine to be applicable. In some cases, even if the circumstances do not allow for a complete exemption, the penalty/fine may still be significantly diminished.
  
  Considering the absence of tradition of plea bargaining mechanisms in the Portuguese legal criminal system, these amendments were the object of severe criticism from several public stakeholders, including the Superior Council of the Judiciary (Conselho Superior da Magistratura) and the Lawyers’ Bar Association (Ordem dos Advogados). 
• The obligation to adopt and implement internal compliance programmes
  
  In terms of the criminal liability of companies or other legal entities for corruption and corruption-related crimes, courts may order the adoption and implementation of an internal compliance programme. 
  
  Also, if the company or other legal entity involved in corruption or a corruption-related crime has already adopted and implemented an internal compliance programme with specific measures on the prevention and combat of corruption behaviour, this may lead to a decrease in the maximum of the applicable fine. 

The draft legislation is being analysed by the Parliamentary Commission on Constitutional Matters, Rights, Freedom and Guarantees and is expected to be submitted to voting soon.