PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, João Diogo Melo, Lua Mota Santos and Amanda Bueno Almeida, Rogério Alves & Associados
5.2 Compliance Programmes Companies are, in certain circumstances, required to implement compliance programmes. In particular, entities subject to AML/CTF obligations under Law No 83/2017 must establish an internal control system and risk management procedures, appoint a compliance officer, implement internal reporting channels and pro - vide appropriate training, among other measures. Additionally, legal persons, whether public or private, with 50 or more employees, as well as certain public or independent bodies, are required to adopt a com - prehensive AML policy, including a code of conduct, training mechanisms, whistle-blowing channels and the designation of a compliance officer. Although there is a strong expectation that smaller private companies falling outside these regimes will adopt compliance programmes, there is generally no formal legal duty for them to do so. Nevertheless, such programmes are recommended in light of repu - tational, contractual and banking or supervisory rela - tionship risks. From the perspective of criminal and administrative liability, a compliance programme does not, as a rule, operate as a “shield” excluding the liability of the legal person. However, it is expressly recognised as a fac - tor that may justify the special mitigation of penal - ties applicable to legal persons, pursuant to Article 90-A(4) of the Penal Code. On the other hand, the absence or inadequacy of such a programme may justify the imposition of more severe ancillary penal - ties and higher fines. 5.3 Defences and Exceptions The distinction between a criminal offence and a mere economic or financial administrative offence is gener - ally drawn by reference to the amounts involved and to the specific intent of the perpetrator. Defences in financial crime cases may rely on the absence of the legally required minimum threshold – for example, amounts below EUR7,500 in cases of tax breach of trust (according to Article 105 of the Legal Framework for Tax Offences) – or on the lack of specific constitu - ent elements of the offence, including the effective receipt of the tax or the presence of specific intent. In this context, it may further be argued that the conduct
in question does not amount to a criminal offence but rather constitutes a mere economic or tax administra - tive offence. As to fault and intent, the defence may invoke a rel - evant mistake either as to the factual circumstances or as to the unlawfulness of the conduct. It may also argue the absence of intent, bearing in mind that many financial crimes do not provide for a negligent form of commission. With regard to objective conditions of criminal liabil - ity and regularisation, reliance may be placed on the fulfilment of payment obligations within the statutory time limits following notification, pursuant to Article 105 of the Legal Framework for Tax Offences, as well as on other regularisation mechanisms provided for under the applicable special regimes. Finally, with respect to material atypicality or insignifi - cance, this may be invoked as a negative element of the offence. However, its likelihood of success is gen - erally lower in the context of tax and financial crimes, given the enhanced protection afforded to the legal interest at stake and the existence of statutory thresh - olds. 5.4 Whistle-Blower Protection Both general and sector-specific frameworks estab - lish the existence of mandatory internal and external whistle-blowing channels, which must ensure confi - dentiality and anonymity. These regimes also provide for a strict prohibition of retaliation against whistle- blowers, accompanied by significant administrative sanctions in the event of breach. Furthermore, in many legal frameworks, namely under Law No 93/2021, the Securities Code and AML leg - islation, whistle-blowers benefit from immunity or exemption from liability where reports are made in good faith. In certain contexts, particularly under the Securities Code, there is also a presumption that any detrimental measures adopted following a report con - stitute retaliation. As regards incentives, these are essentially of a nega - tive or protective nature, consisting primarily of the prohibition of retaliation, immunity from liability and
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