PORTUGAL Law and Practice Contributed by: Bárbara Marinho e Pinto, Amanda Bueno Almeida and Lua Mota Santos, Rogério Alves & Associados Sociedade de Advogados, SP, RL
Managers or directors are also liable, under general terms, to shareholders and third parties for any dam - age directly caused to them in the performance of their duties. Compensation for damages resulting from the com - mission of a crime is governed by civil law. However, under criminal procedural rules, the principle of adhe - sion applies, whereby civil proceedings are conducted within criminal proceedings. For example, if there is an ongoing criminal proceed - ing against a manager or director who intentionally caused significant patrimonial damage to the com - pany through a serious violation of their duties, civil compensation must, in principle, be petitioned within the criminal proceedings (after the Prosecutor pro - duces an indictment). However, the principle of adhesion may be set aside in certain circumstances, such as when the criminal proceedings have not led to an indictment within eight months from the complaint. To lodge a complaint on behalf of the commercial company, it is necessary for the company to resolve this at a general meeting, awarding power to a special representative. 4. Overseas Parties in Fraud Claims 4.1 Joining Overseas Parties to Fraud Claims Under Portuguese law, foreign parties may be joined to fraud claims if there is a close factual or legal con - nection between the claims and the Portuguese courts have jurisdiction over all parties. When such claims involve overseas individuals or entities, Portuguese courts may request international judicial co-operation, including for the service of documents and the col - lection of evidence. These procedures are governed by the Law on International Judicial Cooperation in Criminal Matters (Law No 144/99), as amended. Within the European Union, co-operation is further supported by the Convention on Mutual Assistance in Criminal Matters (2000) and its Protocol to the Convention on Mutual Assistance in Criminal Matters
between the member states of the European Union (2001), which apply exclusively to EU member states that have ratified them. These instruments streamline co-operation in criminal matters among EU countries. Portuguese criminal law also allows courts to exer - cise extraterritorial jurisdiction in specific cases. This includes situations where the offender or victim is Por - tuguese, where the crime impacts national interests or security, or where a law explicitly grants such juris - diction. In fraud cases, if the offence causes harm in Portugal or targets Portuguese interests, courts may assert jurisdiction over foreign defendants. However, such jurisdiction is used cautiously and requires a strong and demonstrable connection to the Portu - guese legal system. Recently, Law No 72/2025 of 23 December was adopted, transposing Directive (EU) 2024/1226, which strengthens the duties of international co-operation for restrictive measures and requires judicial authori - sation under the Law on International Judicial Coop - eration in Criminal Matters when data are to be used in criminal proceedings. 4.2 Service of Proceedings out of the Jurisdiction Under Portuguese criminal law, serving parties locat - ed abroad generally requires formal international co- operation, governed by international conventions, bilateral agreements, and national legislation. The most common method is through letters rogatory, which are formal requests from a Portuguese court to a foreign court seeking assistance with judicial acts such as serving documents, gathering evidence, or carrying out arrests. These are crucial tools in criminal investigations and proceedings involving cross-border elements. Letters rogatory are usually transmitted via diplomatic channels, the Ministry of Justice, or directly between courts, depending on the applicable legal framework. Although effective, the process can be slow due to procedural formalities and the need to respect the sovereignty of the requested state. Still, it ensures legal certainty and safeguards fundamental rights, such as due process and the right to a defence.
272 CHAMBERS.COM
Powered by FlippingBook