Portugal: National Anti-Corruption Mechanism (MENAC) and General Regime for the Prevention of Corruption (RGPC)

published on 8 March 2022 | reading time approx. 3 minutes

On 18 March last, the Portuguese Government approved the final version of the National Anti-Corruption Strategy for 2020-2024 under the terms of the Resolution of the Council of Ministers no. 37/2021 of 6 April.

The Strategy sets out 7 priorities:

To improve knowledge, training and institutional practices on transparency and integrity
To prevent and detect the risks of corruption in public action
Engaging the private sector in the prevention, detection and repression of corruption
Strengthening articulation between public and private institutions
Ensuring a more efficient and uniform application of the legal mechanisms for repressing corruption, improving the response time of the judicial system and ensuring the appropria-teness and effectiveness of the punishment
Producing and disseminating reliable information on the phenomenon of corruption on a regular basis; and
Cooperating at the international level in the fight against corruption.

To this end, the MENAC is created as an independent administrative entity, with legal per-sonality under public law and authority powers, endowed with administrative and financial autonomy, which develops activity at national level in the field of prevention of corruption and related infractions.

In addition to the MENAC, the Decree-Law also approved the general regime for the preven-tion of corruption (RGPC). This new RGPC will be applicable in 180 days, 1 year or 2 years, depending on the circumstances, among others, to legal persons having their head office in Portugal employing 50 or more employees and to branches on national territory of legal per-sons having their head office abroad employing 50 or more employees.

Through the RGPC, it now becomes mandatory to create and adopt corruption prevention measures, including the following:

Regulatory compliance program and compliance officer.
Plan for the prevention of risks of corruption and related infractions (PRR).
Code of Conduct.
Channel for Denunciations.
Internal Training and Communication Program.

The RGPC also requires the appointment of a compliance officer, who must be independ-ent, permanent and have decision-making autonomy and internal information and the nec-essary human and technical resources

In case entities have not yet implemented these prevention mechanisms, they must now start preparing them or, if they already have compliance program, they must adapt them to the legislation now approved.

Without prejudice to civil, disciplinary, or financial liability, the following are punishable as administrative offences, among others:

Failure to adopt or implement a PPR or the adoption or implementation of a PPR that lacks elements.
Failure to adopt a code of conduct or the adoption of a defective code of conduct.
Failure to implement an internal control system.

The above-mentioned administrative offences may reach the amount of € 44,891.81.

Special care must be taken by the members of the management body, managers of entities or the compliance officer, as well as those responsible for the management or supervision of areas of activity in which any administrative offence is committed, since they will be held personally liable for the administrative offences referred to when they commit the facts or when, knowing or having knowledge of their commission, they do not adopt the appropriate measures to put an immediate end to them

In sum:

The creation of MENAC and the implementation of the RGPC represent a new paradigm for the construction of a fairer, more egalitarian, and inclusive society and the re-establishment of solid bonds of trust between citizens, communities, and their democratic institutions.
Entities - and in particular companies employing 50 or more employees - will have to adapt quickly to this new reality.
The non-compliance with the obligations generates, besides potential reputational dam-age, the counterdemand responsibility of the entities, which may contemplate fines and accessory sanctions, including the publication of the condemnatory decision in a newspa-per, as well as in MENAC's official webpage
The misdemeanors applicable to companies and their directors are serious, and they may even be held liable for the actions of their predecessors.
Although it may not seem so, the deadlines for adjustment are short, so it is necessary to quickly start the procedures for implementing the legally determined control instruments and systems.