1. Legal Framework
1.1 International Agreements
Portugal has ratified a number of anti-corruption and anti-bribery treaties, the most important of which are:
the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organisation for Economic Co-operation and Development (OECD) (1997); the European Union Convention on the fight against corruption involving officials of the EU or EU Member States (1997); and the European Union Convention on the Protection of the Financial Interests of the Communities and Protocols (1997) (2003).
Portugal has been a member of the Group of States Against Corruption of the Council of Europe since January 1, 2002. (GRECO).
1.2 Legislation at the National Level
In the area of bribery and corruption, Portuguese law recognizes the following basic offenses: undue receipt of an advantage by a public official, punishable under Article 372 of the Criminal Code; passive and active corruption in the public sector, punishable under Articles 373 and 374 of the Criminal Code; undue receipt of an advantage by a political or high public official, punishable under Articles 373 and 374 of the Criminal Code; undue receipt of an advantage by a political or high (15 November 2003).
Active corruption is defined as the offer of or promise to offer an undue advantage in exchange for performing an action or omission (quid pro quo), whereas passive corruption is defined as the request or acceptance of an undue advantage for the same purpose.
Corruption provisions apply whether the undue advantage is offered or accepted by a public official, politician, private worker, sportsperson, or military official directly or through an intermediary (if consent or ratification is given), and whether the undue advantage is intended for the public official/politician/private worker/sportsperson/military official or for a third party.
Corruption can be punished whether the action or omission expected in exchange for the undue advantage is unlawful (contradictory to the responsibilities exercised) or lawful (not contrary to the responsibilities exercised), with the penalty being more severe if it is unlawful.
Finally, Article 372 of the Criminal Code, Article 16 of the Law on Political and High Public Officials Corruption, and Article 10-A of Law 50/2007 (31 August 2007), regarding bribery in sports competitions, state that the acceptance or offer of an undue advantage by or to a public official, political or high public official, or a sports agent constitutes a criminal offense, with or without intent.
1.3 National Legislation Interpretation and Enforcement Guidelines
There are no explicit standards for how national legislation should be interpreted and enforced. It’s important to keep case law and doctrine in mind.
Following some media controversy, the Portuguese government issued its own code of conduct (approved by the Council of Ministers Resolution 53/2016 on September 21, 2016), which established guidelines for accepting gifts and invitations by members of the government, including officials from their respective cabinets. If an offer has a value equal to or greater than a benchmark amount of EUR150, it is regarded to impact their impartiality and integrity in the performance of their duties, according to these standards. Special allowances are made in the guidelines for invitations viewed as established social and political customs, invitations to events where the participation of a member of the government is of public importance, and occasions involving formal representation of the Portuguese state.
In national championships, the body in charge of organizing the Portuguese football league passed a code of conduct prohibiting referees from receiving offers equal to or greater than EUR 150.
1.4 Key National Legislation Amendments in Recent Years
As a result of the work of the parliamentary commission on transparency, Law 52/2019, enacted on July 31st, introduced the exclusivity requirement in the exercise of public office, as well as the requirement to present all income and asset declarations issued by holders of political positions and high public offices in a single document that is accessible online. Every act and action that may lead to incompatibilities and barriers for the holder of a political position or high public office shall be included in this declaration.
The Entity of Transparency of Holders of Political Positions and High Public Offices was officially created on September 13th under Organic Law 4/2019 as the body responsible for, among other things, monitoring and assessing the truthfulness of income and asset declarations issued by public officers.
The National Strategy to Combat Corruption (Estratégia Nacional de Combate à Corrupço 2020-2024) was just authorized by the Portuguese Council of Ministers. The text lays out a series of steps that will significantly alter the current criminal justice landscape, particularly in the areas of criminal compliance, corporate criminal liability, and plea-bargaining processes.
2. Constituent Elements and Classification
2.1 Bribery
A bribe (undue advantage) is a monetary or non-monetary favor that benefits the person who receives it in some way without any legal basis or justification. The benefit can be given to a public official, politician, or private worker, but it can also be given to a third party if any of the above-mentioned individuals request or consent to it. In all situations, the bribe can be carried out through the use of an intermediary.
Receiving a bribe is considered passive corruption, according to 1.2 National Legislation.
Bribery may qualify as an undue receipt of an advantage when a public official is involved, as specified in Article 372 of the Criminal Code and Article 16 of the Law on Crimes of Political Officials’ Responsibility, without any requirement that the consequences sought by the offenders really occur.
Bribes can include hospitality and advertising expenses, as well as facilitation payments, especially when they are viewed as consideration for an action or omission to be performed. They may also expose them to criminal liability under Article 372 of the Criminal Code and Article 16 of the Law on Political Officials’ Crimes of Responsibility, both of which define the crime of excessive benefit, regardless of the existence of a specific factor.
Certain sorts of behavior, however, are exempt from the criminal legal framework if they are deemed socially acceptable and in accord with customs and practices. Each circumstance must be assessed against a “reasonability” criteria, taking into account the facts of the case, such as the industry, the context, and the persons involved.
Failure to prevent a bribe is not a criminal offense in and of itself, but if a person provides material or moral assistance to the perpetrator of the crime, he or she may be held criminally accountable for bribery and corruption. Furthermore, businesses may be held liable for bribery-related offenses if they occurred within their organization (ie, if they did not have appropriate mechanisms in place to prevent such an offence from occurring).
For the purposes of criminal law, Article 386 of the Criminal Code establishes an extremely broad definition of “public official.” Politicians, civil servants, administrative agents, arbitrators, jurors, and experts, members of managing or supervisory bodies, or employees of state-owned or state-related companies (including private companies with a majority of capital held by the state or state-owned entities, as well as companies providing public services under a concession agreement) are all included in this definition.
Bribery of foreign government officials is likewise illegal. Active corruption in international trade is punishable under Article 7 of Law 20/2008 when an individual, acting on their own behalf or through an intermediary, gives or promises to give an undue advantage to a public official, national or foreign, or an official from an international organization, or to a third party with consent or ratification from any of the previously mentioned.