PORTUGAL Trends and Developments Contributed by: Ana Reis Mota, Rogério Alves & Associados Sociedade de Advogados SP, RL
However, the mechanism of extended asset forfei - ture continues to spark legal debate. Under the cur - rent system, any asset or monetary value held by a defendant that appears inconsistent with their law - ful income may be subject to confiscation – unless the defendant can prove its legitimate origin. This presumption is enshrined in Article 7 (1) of Law No 5/2002, which states that the “difference between the value of the defendant’s assets and those consistent with their lawful income” is presumed to derive from criminal activity. The GRA is tasked with determin - ing the so-called “congruent assets”. If the defendant does not challenge this assessment, the GRA’s valu - ation – regardless of its accuracy – becomes final, resulting in the forfeiture of the assets to the state. Critics argue that this framework effectively reverses the burden of proof and risks undermining the pre - sumption of innocence. The Constitutional Court, however, has repeatedly upheld the constitutionality of the presumption, emphasising that extended con - fiscation is not a purely penal sanction but a patri - monial reaction to an incongruent wealth situation, intended to restore a lawful economic order rather than to punish culpability in the classic sense. This doctrinal and jurisprudential tension will likely remain central to litigation in this area. Whistle-blower protections driving disclosure Law No 93/2021 established the general regime for the protection of whistle-blowers, transposing into Portuguese law Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The primary purpose of the Portuguese law is to encourage the reporting of infringements by ensuring that whistle-blowers are not penalised for acting in the public interest and in compliance with the law. As a result, protected whistle-blowers are a growing source of evidence in both public and private fraud claims, with access to anonymised disclosure chan - nels improving asset tracing intelligence. From a subjective perspective, the regime covers any natural person who, acting in good faith and based on reasonable grounds, reports an infringement commit - ted in the context of their professional activity. This includes current or former employees, service provid -
ers, trainees, job applicants, shareholders and mem - bers of corporate bodies, among others. The law establishes three possible channels for reporting: • entities with 50 or more employees, whether public or private, are required to implement secure and confidential mechanisms for receiving and follow - ing up on reports; • an external channel directed to competent public authorities, such as the Bank of Portugal; and • public disclosure, particularly when adequate responses are not provided through the other channels or when there is an imminent risk to the public interest. The core of the regime lies in protection against acts of retaliation, which include suspension or dismissal, demotion, reassignment of duties, moral harassment, changes to contractual conditions, and threats or any form of intimidation. Another important measure is the presumption of retaliation by the contracting entity; that is, if a whistle-blower who has made a valid report subsequently suffers an adverse measure, it is pre - sumed that this was motivated by the report, thereby placing the burden of proof on the accused entity to demonstrate otherwise. Whistle-blowers who do not act “in good faith” do not enjoy the protection afforded by the law. The debate over what constitutes a legitimate complaint made in good faith will certainly animate the courts, which will have to settle this new area of litigation between com - panies and their employees. From 2024 onwards, the EU’s new corporate sus - tainability due diligence framework – Directive (EU) 2024/1760 – has further increased the strategic impor - tance of internal and external whistle-blowing chan - nels, particularly in ESG sensitive sectors and complex value chains. Risk-based due diligence obligations, combined with protection against retaliation under the whistle-blowing regime, mean that internal reports are increasingly feeding into supervisory actions and civil litigation concerning supply chain and sustainability risks.
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