PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
Regarding cross-border reach, Regulation (EU) 2018/1805 establishes a system of mandatory mutual recognition of freezing and confiscation orders among member states, enabling Portugal both to request and to execute such measures across the EU on the basis of standardised certificates and with limited grounds for refusal. 3. Core Financial Crime Offences 3.1 Fraud and Dishonesty Offences The principal offences involving patrimonial fraud are primarily set out in the Penal Code. The central offence is fraud ( burla ), which requires that the perpe - trator, with the intent of obtaining unlawful enrichment, deceitfully induces the victim into error, thereby lead - ing them to perform acts that cause patrimonial loss to themselves or to a third party. Basic fraud is pun - ishable by up to three years’ imprisonment or a fine, while aggravated fraud – namely where the loss is of significant or particularly significant value, where the offence constitutes a way of life or where the offender exploits the victim’s particular vulnerability or places them in a difficult economic situation – carries penal - ties of up to five years or between two and eight years’ imprisonment. A second group of offences concerns misappropria - tion and abuse of position. Criminal breach of trust ( abuso de confiança ) covers the unlawful appropria - tion of movable property entrusted to the offender under a non-transfer of ownership arrangement, punishable by up to three years’ imprisonment or a fine, with aggravated forms depending on the value involved or the fiduciary position of the offender. The offence of breach of fiduciary duty ( infidelidade ) applies to directors, agents or other fiduciaries who, in managing or disposing of another’s assets, inten - tionally and in serious breach of their duties cause significant patrimonial damage, and is likewise pun - ishable by up to three years’ imprisonment or a fine. In the public sector, the offence of harmful management ( administração danosa ) addresses intentional misman - agement in violation of legal or rational management standards resulting in significant financial damage to
public or co-operative entities, and carries penalties of up to five years’ imprisonment or a fine. In practice, complex economic and financial crime cases tend to involve multiple overlapping offences, whether in real or apparent concurrence, with the Pub - lic Prosecutor typically structuring charges around the most serious offence, and the courts resolving issues of legal classification through doctrines of concur - rence or absorption. 3.2 Bribery and Corruption The core offences relating to corruption in public office are set out in the Penal Code. The offence of undue receipt or offer of an advantage operates as a “gateway” provision: a public official who, in the exer - cise of their functions or by reason thereof, solicits or accepts an undue advantage (whether pecuniary or non-pecuniary), or any person who offers or promises such advantage, is subject to criminal sanctions. The official faces up to five years’ imprisonment or a fine, while the offeror is punishable by up to three years’ imprisonment or a fine, with only socially adequate and customary conduct excluded. Passive corruption requires a quid pro quo: the solici - tation or acceptance of an advantage in exchange for an act or omission. This includes acts contrary to the duties of office (so-called improper corruption), punishable by one to eight years’ imprisonment, and lawful but undue acts within the scope of official func - tions, punishable by one to five years’ imprisonment. Active corruption mirrors these scenarios for the party offering or promising the advantage, with penalties of one to five years’ imprisonment where the purpose is an unlawful act, and up to three years’ imprisonment or a fine where the act is lawful but undue; attempts are also punishable. For holders of political office, Law No 34/87 replicates these offences with gener - ally more severe penalties. Regarding foreign public officials and international organisations, the legal framework focuses primarily on active corruption in international business (Law No 20/2008). This offence criminalises the act of offering or promising an undue advantage to national or for - eign public officials, officials of international organisa - tions, or domestic or foreign political office holders,
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