PORTUGAL Law and Practice Contributed by: Andreia Candeias Mousinho, Diogo Duarte Campos, João Marques Mendes and Raquel Freitas, PLMJ
6.4 Shareholder or Parent Company Liability Administrative Offence Liability Given the legal provisions of the framework law for environmental administrative offences, it is not clear whether this type of liability can also extend to share- holders. Civil Liability and Environmental Liability (for Environmental Damage) Regarding civil liability and environmental liability, if the operator is a commercial company that is in a group or control relationship, the environmental liabil- ity extends to the parent or controlling company when there is abuse of legal personality or illegal fraud. 6.5 ESG Requirements The main ESG requirements have been enacted at the EU level and are directly applicable, notably through the Taxonomy Regulation (which offers a unified sys- tem for classifying environmentally sustainable activi- ties, aiding financial actors in distinguishing between and comparing environmentally friendly investments) and the Sustainable Finance Disclosure Regulation and the respective delegated acts (aimed at stand- ardising how sustainability-related information in the financial sector should be reported). Financial inter- mediaries and alternative investment fund managers must also integrate ESG risks into their operations, as dictated by the Commission Delegated Regulations (EU) 2021/1253 and 2021/1255. Supervision and Enforcement ESG requirements are mainly supervised and enforced by: • the Bank of Portugal; • the Portuguese Securities Market Commission ( Comissão do Mercado de Valores Mobiliários , or CMVM); and • the Supervisory Authority for Insurance and Pen- sion Funds ( Autoridade de Supervisão de Seguros e Fundos de Pensões , or ASF). The Bank of Portugal has a dedicated committee that streamlines its ESG initiatives annually and has shown its commitment to exploring the interaction between the environment, the financial system and monetary policy. The CMVM ensures that regulated companies
maintain transparency in financial and sustainability practices and promote the integration of ESG fac- tors in market practices. The ASF analyses the envi- ronmental dimension and ESG rating application to the national insurance sector’s investment portfolio, overseeing the regulation and supervision of insur- ance, reinsurance, pension funds and their managing entities. The following legal requirements at the national level should be highlighted. • The Climate Law mandates that private companies prioritise climate and environmental balance. Direc- tors are also expected to consider and disclose climate change-related risks to companies. • The Structured Deposits Law (Law 35/2018) man- dates that credit institutions include sustainability objectives in the design of structured deposits and provide transparent information about their sustain- ability characteristics. This also extends to market- ing and advisory roles. • The Asset Management Legal Framework (Decree Law 27/2023) dictates that asset managers incor- porate sustainability risks, ensuring that they have the resources and procedures to do so effectively. • The Investment Firms Regulation (Decree Law 109-H/2021) emphasises the importance of invest- ment firms having strategies and internal policies to manage and control sustainability risks that can adversely affect investment value. • The Commercial Companies Code mandates that major corporations disclose non-financial and diversity information in accordance with the EU Non-Financial Reporting Directive. Although the Corporate Sustainability Reporting Directive (CSRD) has not yet been transposed into Portu- guese law, the CMVM has issued guidance clarify- ing that companies already subject to the obliga- tion to publish non-financial statements should do so in accordance with the European Sustainability Reporting Standards. • The Securities Code requires each listed company to establish and disclose its remuneration policy on its website and explain how the remuneration policy contributes to the sustainability of the com- pany. In addition, the remuneration policy must set out the criteria for granting variable remuneration, if
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