AML/CTF legislation country profile

ECBA Questionnaire filled in for Portugal

a) Legislation

1. Definition of money laundering in the local legal system.

Money laundering is criminalized in Portugal under the art. 368˚-A of the Penal Code.

It occurs when: one, directly or indirectly, converts, helps to convert, transfers or helps to transfer advantages (goods or products).

The aim of this conversion or transference is to dissimulate the unlawful origin of the advantages, which were obtained though a criminal act or to avoid the crime agent to be prosecuted.

One hides or dissimulates the true origin, nature, location, disposal, movement or title of the advantages.

2. Sanctions for money laundering offence.

Art. 368˚-A Penal Code:
- imprisonment of 2 to 12 years.

This penalty can be aggravated by 1/3 if the agent develops this conduct in a regular manner and can be attenuated if the agent completely compensates the damages that were caused.

3. (Legal) professions especially affected by local AML/CTF legislation.

Art. 30 and art. 40 of Law nr. 25/2008 :

- credit institutions;
- investment companies;
- entities who are in charge of management or trading of venture capital funds;
- casino operators;
- entities in charge of premium and lottery payments;
- trader with transactions above to 15.000,
- real estate agents;
- tax advisors;
- external auditors;
- attorneys at law;
- paralegal;
- notaries;
- financial experts;
- Official account technicians and revisers;
- funds transporters;
- Other independent employees.

4. Specific regulations imposed upon attorneys at law.

Art. 4 of the Law 25/2008 :

As a result of assisting in the planning or execution of transactions of their clients attorneys at law acquire the obligation of reporting directly to the President of the Bar Association.

Those operations involve :

- real property buying and selling, business establishments and shares;
-funds and securities;
-opening or management of bank, savings and securities accounts;
- creation, operation or management of companies, trusts or similar structure;
-acquisition and alienation of professional sport practitioners rights;
- Financial or real estate transaction, when in behalf of their client.

b) Bar Association

1. Directives – formulated by the Bar Association – guiding the interpretation of the legislation and the force of these directives (binding, guideline,…).

No, there haven't been any.

2. Causes for discussion at the implementation stage of the European Directive in local legislation especially in relation to a possible conflict between this legislation and your professional code of ethics?

There were some discussions.

In fact, the discussion resulted from the restriction of the professional secrecy that the Directive implied.

This secrecy is consecrated in the Bar Association Statutes.

The restriction does not result from obligations such as the necessity to identify the clients, the refusal of doing illegal operations, the need to maintain the documentation or the existence of examinations.

Actually, all those obligations already existed in attorney’s statutes. The restriction of professional secrecy is the result of the need for lawyers to give information to some authorities in situations in which the secrecy is applied, and to which there are legal and deontological obligations.

The internal law opted to restrict the obligation to violate the secrecy, establishing that the information can never be given in a situation of mandate.

Therefore, information obtained before, during or after the judicial process is protected when:

-  the attorney is representing or defending the client in a judicial process;
- the attorneys’ activity concerns a judicial process;
- the attorney provide recommendation concerning a judicial process;
- the Attorneys provide advice concerning the best way to avoid a judicial process.

3. Any action taken by the local Bar Association against the way in which the European directive was implemented in local legislation?

Yes, action was taken.

Our Bar Association put pressure to assure that all attorney’s rights were protected and that the foundation of advocacy’ exercise was preserved.

We believe that the pressure that was made led to a more restrictive application of the Directive.

4. Other bodies that have undertaken any form of action to safeguard the rights of their members in this respect.

No, there was not any other form of action because attorneys at law were the most affected group. In fact, the other professions were already subjected to that kind of obligations under our internal law and there wasn’t an effective change in the way they were supposed to act.

c) Legal practice

1. Particularities that foreign attorneys at law in contact with the local legal system should be aware of / recommendations to be taken into consideration?

It is always desirable to be advised by an attorney before acting under Portuguese law.

DISCLAIMER
The ECBA maintains this website to provide and disseminate information on criminal procedure in the EU with regard to national money laundering legislation as it applies to attorneys at law. The content of the website relies on contacts in each jurisdiction and although our aim is to keep this information accurate, the ECBA does not warrant or assume any legal liability or responsibility for the accuracy, completeness, or reliability of the content. This information does not constitute legal advice. If errors are brought to our attention, we will try to correct them.
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Last Updated (Thursday, 20 January 2011)