PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, Ana Reis Mota, Lua Mota Santos and Jéssica Dinis Bento, Rogério Alves & Associados
7.3 Circumvention 7.3.1 Prohibiting Provisions
In the case of legal entities, the entity itself may incur criminal liability. In addition to the usual criminal meas - ures applicable to legal entities, the law provides for very substantial fines. In broad terms, offences linked to failures in reporting and disclosure may result in fines of up to 1% of the company’s worldwide turno - ver in the preceding year, or up to EUR8 million when such turnover cannot be determined; offences in which the company actively contributes to the cir - cumvention of sanctions (for example, transferring funds which should be frozen to other group entities, or providing false information as to the ownership or beneficial ownership of such funds) may be punish - able by fines of up to 5% of that worldwide turnover, or up to EUR40 million when it cannot be determined. When the conduct is negligent, these maximum limits are reduced by half, allowing the court to tailor the sanction to the seriousness of the offence and the internal organisation of the entity. The law also pro - vides for an increase of one third in the penalties, at both their minimum and maximum limits, when the offence is committed by an employee in the exercise of their duties or within the framework of a criminal association, as well as for special mitigation when, up to the close of the trial hearing at first instance, the offender has provided significant co-operation in establishing the truth.
The circumvention of restrictive measures is expressly prohibited under Portuguese law. Article 28 (2) of Law No 97/2017 criminalises conduct carried out with the intention of preventing a restrictive measure from pro - ducing its effects. This includes, in particular, using or transferring funds or economic resources that are directly or indirectly owned, held or controlled by a designated person, entity or body – and that should be frozen – in order to conceal those assets; provid - ing false or misleading information to hide the identity of the owner or ultimate beneficiary of funds or eco - nomic resources that must be frozen; failing to comply with obligations to notify the competent administrative authorities of relevant funds or economic resources located in Portugal; and failing to provide information to those authorities on frozen assets or on assets that should have been frozen but were not, where such information is obtained in the course of a professional activity. In all these cases, the focus is on preventing schemes that would undermine or neutralise the prac - tical effectiveness of the restrictive measures. 7.3.2 Criminal Penalties In Portugal, a direct breach of sanctions constitutes a criminal offence as do attempts to circumvent those measures. Such conduct is punishable by a term of imprisonment from one to five years. When these offences are committed with negligence, the offender is liable to a term of imprisonment from six months to two years and six months.
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