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
information is deemed essential to uncover the truth and ensure justice. Portuguese law provides statutory exceptions that allow disclosure to judicial authori - ties in criminal cases, to supervisory authorities such as the Bank of Portugal (“Banco de Portugal”), Por - tuguese Securities Market Commission (CMVM) and Insurance and Pension Funds Supervisory Authority (ASF). The lifting of banking secrecy in criminal cases follows the procedure outlined in Article 135 of the Code of Criminal Procedure. In light of said procedure, where a witness considers that the duty of professional secrecy prevents the answering of certain questions, this circumstance must be declared before the judicial authority seised of the specific case. Where there are well-founded doubts as to the legiti - macy of the refusal, the judicial authority (judge or prosecutor, depending on the stage of the criminal procedure) shall hear the professional body repre - senting the profession to which the relevant duty of professional secrecy relates – for example, the Bar Association in the case of lawyers, or the Portuguese Medical Association in the case of medical doctors. Ultimately, the lifting of professional secrecy may be ordered by the higher court, where it recognises that the facts are indeed covered by such secrecy but nonetheless considers that the giving of evidence is justified, on the basis that other interests – for exam - ple, the ascertainment of the material truth – prevail over the interest underlying professional secrecy. 7.3 Crypto-Assets Portuguese legislation no longer relies on a purely fragmented, anti‑money laundering and counter‑ter - rorist financing (AML/CTF) centric approach to crypto- assets. Since the entry into force of Regulation (EU) 2023/1114 (also known as MiCA) and the adoption of a dedicated national implementing statute, Portugal now benefits from a more comprehensive, sector-spe - cific regulatory framework. This framework designates Banco de Portugal and CMVM as the competent authorities for supervision, sanctioning powers, and interim measures in the crypto-asset market, without prejudice to the continued robust focus on AML/CTF.
Within this limited regulatory landscape, Law No 83/2017, of 18 August, remains central. It has now been updated to include specific measures concern - ing crypto-asset transfers and self-hosted addresses, and to subject crypto-asset service providers to the supervision of Banco de Portugal. Although the term “virtual asset” was historically used for compliance purposes, the legal framework now expressly refers to the definition of crypto-assets by reference to MiCA and places the corresponding services under sectoral supervision, while preserving the AML/CTF focus. Although drafted in functional terms, this AML/CTF framework – together with the MiCA implementing regime – recognises the economic and proprietary nature of crypto-assets for supervisory and enforce - ment purposes, subjecting them to regulatory con - trols, registration requirements, and interim meas - ures within the remit of the Banco de Portugal and the CMVM. As referenced in 5.1 Methods of Enforcement , Por- tuguese criminal procedure and mutual recognition instruments allow for the seizure of objects connected with the commission of a criminal offence, as well as the instruments, proceeds, and benefits derived from it, under Article 178 of the Portuguese Code of Crimi - nal Procedure. This normative framework, combined with the princi - ple that any property liable to be confiscated must be subject to seizure, has enabled judicial authorities and criminal police bodies to seize physical crypto wallets (ie, hardware wallets), where such assets are linked to offences such as fraud, aggravated swindling, corrup - tion, money laundering, or tax evasion. In the case of custodial wallets – particularly those managed by centralised exchanges based within the European Union or operating in co-operation with judicial authorities – it is possible, via international judicial co-operation mechanisms, to order the freez - ing or transfer of the respective assets, in accordance with applicable mutual assistance instruments. The main challenge – common across all legal sys - tems and particularly acute in the crypto-asset con - text – lies in the identification, tracing, seizure, and
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