The National Anti-Corruption Mechanism and the new general regime for the prevention of corruption
On the 9th of December, Decree-Law No 109-E/2021 was published which created the National Anti-Corruption Mechanism (hereinafter "MENAC") and established the general regime of prevention of corruption (hereinafter "RGPC").
This decree-law also proceeds with the third amendment to Decree-Law 276/2007 of 31 July, which approved the legal framework for the inspection activity of the direct and indirect administration of the State.
The publication of this decree-law and the objectives and strategies promoted by are a result of the implementation of the "National Anti-Corruption Strategy 2020-2024" approved by the Resolution of the Council of Ministers no. 37/2021 of 6 April.
Thus, the MENAC is created as an "independent administrative entity, with legal personality, of public law and with authority powers, endowed with administrative and financial autonomy" which has, as its main objectives, the promotion of transparency and integrity of public action and the guarantee of effectiveness of policies to prevent corruption and related infractions, including the promotion and control of the implementation of the RGPC.
For the development of these objectives, powers of initiative, control and sanction are conferred, and the entity is endowed with administrative and financial autonomy. Regarding its organic structure, the MENAC is composed by a President, Vice-President, Advisory Council, Monitoring Commission and Sanctions Commission.
At the same time, in annex to this decree-law the RGPC is approved which provides a relevant set of obligations and duties to which the following entities are bound (hereinafter "covered entities"):
· Legal persons registered and which headquarters in Portugal employing 50 or more workers;
· Branches on national territory of legal persons with headquarters abroad employing 50 or more workers;
· Services and legal persons of the direct and indirect administration of the State, autonomous regions, local authorities and the corporate public sector employing 50 or more workers; and
· Independent administrative entities with functions of regulation of economic activity in the private, public and cooperative sectors.
In this context, the concept of corruption and related offences corresponds to the crimes of corruption, receiving and offering an undue advantage, embezzlement, economic participation in business, graft, abuse of power, prevarication, influence peddling, laundering or fraud in obtaining or diverting a subsidy, grant or credit, as provided for in the Criminal Code.
This regime envisages that these entities shall adopt and implement a plan for the prevention of risks of corruption and related infractions (hereinafter "PRR"), a code of conduct, a training programme and a whistleblowing channel in order to prevent, detect and sanction acts of corruption and related infractions. In addition, they must appoint a member of their senior management or equivalent as responsible for regulatory compliance.
In the implementation of the RRP, the entities must contemplate:
· The identification of the areas of activity of the entity with risk of committing acts of corruption and related infractions;
· The probability of occurrence and foreseeable impact of each situation;
· Preventive and corrective measures to reduce the probability of occurrence and impact of the risks and situations identified;
· In situations of high or maximum risk, the most exhaustive prevention measures, with priority being given to their execution;
· The nomination of the person responsible for the execution of the plan, who may be the person responsible for regulatory compliance.
The entity must carry out a self-assessment of its RRP and draw up on a mandatory basis the following reports:
· A mid-term evaluation report on the identified risk situations, in the month of October; and
· Evaluation report, to be submitted in April of the following year, identifying the degree of implementation of the preventive and corrective measures identified, as well as the forecast for their full implementation.
These entities must additionally adopt a code of conduct that establishes a set of principles and rules of action applicable to all managers and workers in matters of professional ethics. This code shall contain, at least, the disciplinary and criminal sanctions provided for by law and associated with acts of corruption and related offences.
The RRP and code of conduct shall be subject to review every three years or whenever a change occurs in the duties or organic or corporate structure of the company that justifies the review of the elements. Simultaneously, the RRP and the code of conduct must be disclosed to employees and made available on the official website within 10 days of its implementation and respective revisions or preparation.
Covered entities should have internal channels for reporting acts of corruption and related offences, an obligation that derives from the European legislative framework on the protection of whistle-blowers.
Finally, the entities covered ensure the implementation of internal training programmes for all their managers and employees to ensure the compliance with the internal corruption prevention policies and procedures, which must be carried out which a frequency appropriate to the exposure to the identified corruption risks.
The non-compliance with these obligations is associated with a regime of administrative offences with fines ranging from € 2,000.00 to € 44,891.81 for legal persons or similar entities, and € 3,740.98 for individuals. These amounts will revert to the Portuguese State and to MENAC.
Regarding the obligations especially foreseen for public entities, we highlight the following: the duty to obligatorily disclose information about their functioning and activity in order to promote administrative transparency; the adoption of adequate measures to ensure exemption, impartiality and to prevent situations of favouritism or conflicts of interest; the adoption of an internal control system proportional to the nature, dimension and complexity of the entity, as well as, the duty to adopt adequate measures to promote competition in public procurement.
The introduction of this decree-law into the Portuguese legal system is, therefore, a relevant step in the establishment of an effective corruption prevention system in Portugal in tandem with the repressive system provided for in the Criminal Code.
Law 54/2008 of 4 September is repealed with the publication of this decree-law.
The decree-law comes into force 180 days after its publication, with the following exceptions:
· The triggering of sanctions for non-compliance with the obligations provided for in the RGPC may only occur one year after the entry into force of this decree-law for the generality of the entities covered, and two years after the entry into force of the decree-law for entities that are considered medium-sized enterprises, in accordance with the criteria provided for in the annex to Decree-Law No. 327/2007, of 6 November;
· The Council for the Prevention of Corruption will be dissolved with the installation of the MENAC.
To access to the entire wording of Decree-Law no. 109-E/2021 of 9th December please click here.
For more information on this subject, please contact:
Head of the Banking and Finance Department