PORTUGAL Law and Practice Contributed by: João G Gil Figueira, Rodrigue Devillet Lima and Catarina Andrade Miranda, GFDL Advogados
12.3 Responsibility for Losses There are no specific provisions regarding liability for losses other than those set out in MiCA related to dam - ages for providing incorrect information in the white paper. As a general rule, fintech firms do not benefit from the same level of legal protection as provided by Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes. As such, losses arising from “bad” invest - ments are typically borne by investors. The absence of a specific framework for customer losses does not imply that a fintech firm will not be held liable for losses resulting from breaches of con - tract or under the general civil liability provisions of Portuguese law. It is important to note that, unlike the liability provisions under MiCA for incorrect informa - tion in the white paper, the general civil liability provi - sions will not impose liability on the firm’s administra - tors, managers or supervisory bodies. Instead, liability will be limited to the legal entity responsible for the damages or losses.
or misleading information in investment solicitation, which can result in imprisonment of between six and eight years, with loss of gains of the perpetrator for engaging in such practice. The most closely related crime in the financial servic - es, in this case, would most of the time be that which is known as “Burla”, which criminalises the conduct of “whoever, with the intention of obtaining for them - selves or for a third party illegitimate enrichment, by means of error or deceit about facts that they cun - ningly provoked, induces another person to perform acts that cause them or another person patrimonial damage”, leading to a punishment of imprisonment for up to three years or a fine. The Portuguese Penal Code establishes an aggra - vated “Burla” classification when the loss incurred by the victim is greater than EUR5,100. In these cases, the penalty can be imprisonment for up to five years. If other conditions are met, the term of imprisonment can go up to eight years. A fraudulent agent will likely also be charged with for - Regulators are not focused on any specific type of fraud and will communicate any crimes they detect while exercising their supervisory powers and con - ducting inspections. Considering the severity of the penalties applicable to financial crimes, most industry players do not flirt with such crimes because of the actual risk of incarceration, loss of gains and profes - sional licence cancellation. gery, tax fraud and money laundering. 12.2 Areas of Regulatory Focus
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