PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
3.4 Financial Services Crime Insider dealing is criminalised as the offence of “abuse of information” under the Portuguese Securities Code ( Código dos Valores Mobiliários – CVM). It covers any person who, being in possession of inside information by virtue of corporate functions, professional activity or an unlawful source, uses it to trade, recommend or order transactions, or discloses it outside the normal scope of their functions. The offence is punishable by imprisonment of up to five years or a fine, with a miti - gated penalty framework applicable to “tippees” who do not possess those specific qualifying attributes. The concept of inside information directly refers to Regulation (EU) No 596/2014 (the Market Abuse Reg - ulation – MAR), which establishes the common frame - work prohibiting insider dealing and market manipula - tion within the EU. Market manipulation is separately criminalised under the CVM. The dissemination of false, incomplete, exaggerated, biased or misleading information, and the execution of fictitious transactions or other fraudulent practices capable of artificially distorting the proper functioning of the market, is punishable by imprisonment of up to five years or a fine. This penalty may be increased to up to eight years’ impris - onment where the conduct causes or contributes to such artificial distortion. In addition, there is a specific offence of “use of false or misleading information in the raising of investment”, applicable to members of management or governing bodies of issuers or intermediaries who resolve to raise investment, place securities or obtain financing based on false or misleading economic, financial or legal information. The applicable penalty generally ranges from one to six years’ imprisonment, increasing to two to eight years when the investment or financing is effectively secured. Negligent forms of the offence are also punishable, and there is significant mitigation where full reparation of the damage is made. Furthermore, Law No 78/2021 establishes a horizontal framework aimed at the prevention and suppression of unauthorised financial activity, as well as the unau - thorised establishment or operation of markets, par - ticularly in their dealings with consumers. It provides
with the aim of obtaining or retaining business or any improper advantage in international trade, and is pun - ishable by one to eight years’ imprisonment. In the private sector, the same statute establishes offences of passive and active corruption: employees who solicit or accept undue advantages in breach of their professional duties face penalties of up to five years’ imprisonment or a fine, increased to one to eight years where the conduct is capable of distorting competition or causing financial harm; those who offer or promise such advantages are subject to penalties of up to three years’ imprisonment or a fine, rising to up to five years or a fine where similar aggravating effects are present. 3.3 Money Laundering The offence of money laundering is set out in Article 368-A of the Penal Code. It encompasses the con - version, transfer, concealment or disguise of assets (“proceeds”) obtained by oneself or by a third party, as well as their acquisition, possession or use, with knowledge of their unlawful origin. The offence is pun - ishable by a term of imprisonment of up to 12 years, which may be aggravated in cases of habitual conduct or where the offender is an entity subject to the pre - ventive regime. “Proceeds” are deemed to include assets derived from any unlawful act typified as a criminal offence punishable by a minimum term of imprisonment exceeding six months or a maximum term exceed - ing five years, as well as from a broad catalogue of offences, including cybercrime, corruption and capital markets offences. In parallel, Law No 83/2017 establishes an extensive preventive framework, imposing on financial institu - tions and a range of non-financial entities (including, under certain conditions, lawyers and other profes - sionals) duties relating to internal control, customer identification and due diligence, reporting of suspi - cious transactions, abstention from and refusal to car - ry out transactions, record-keeping, enhanced scru - tiny, co-operation with the authorities, non-disclosure (“tipping off”) and training, as well as providing for a stringent administrative sanctions regime in non- compliant cases.
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