New Anticorruption Directive: Key changes

It establishes minimum rules for defining criminal offenses and setting penalties for corruption and sets out measures to prevent and combat corruption in both the public and private sectors.

This new European Union (“EU”) legislation marks a significant development for legal persons. That is because they are now exposed to severe financial penalties, which may reach 5% of worldwide turnover (or €40 million). They may also face exclusion from public funding, including public tenders, grants, concessions, and licenses, as well as temporary or permanent bans on carrying out commercial activities. Against this backdrop, the implementation of effective compliance programs assumes heightened importance. The Anticorruption Directive expressly recognizes such programs as a mitigating factor for legal persons.

In Portugal, the adoption of compliance programs is already mandatory under the General Regime for the Prevention of Corruption, which applies to entities with 50 or more employees. That regime reinforces the need for companies to reassess and strengthen their compliance frameworks.

Harmonized definition of corruption offenses

The new rules require Member States to define and treat the following offenses in a harmonized manner throughout the EU:

(i) Bribery in the public and private sectors; (ii) Misappropriation; (iii) Trading in influence; (iv) Obstruction of justice; (v) Enrichment from corruption offenses; (vi) Concealment; (vii) Serious violation of unlawful exercise of public function;

The Anticorruption Directive also extends to incitement, aiding and abetting, and the attempt to commit these offenses.

Penalties for individuals

The Anticorruption Directive establishes common minimum levels of criminal penalties. It ensures the listed offenses are punishable by effective, proportionate and deterrent criminal penalties, including maximum prison sentences of at least:

(i)  five years for corruption in the public sector where the official’s act constitutes a breach of duty;

(ii)  four years for misappropriation by a public official, enrichment from corruption offenses, and concealment; and

(iii) three years for corruption in the public sector without a breach of duty, corruption in the private sector, and trading in influence.

Member States may decide not to impose criminal liability for misappropriation where the benefit or loss involved is less than €10,000.

In addition to prison sentences, individuals may face additional penalties or measures, including: financial penalties; disqualification from holding public office; disqualification from performing public service duties; temporary disqualification from running for public office; revocation of licenses and permits; exclusion from public funding; and publication of the court decision.

Penalties for legal persons

Legal persons may be held liable for corruption offenses committed for their benefit by any person in a management position. They may also be held liable where a lack of supervision or control made the offense possible.

The fines imposed on legal persons are calculated by reference to their worldwide turnover or fixed minimum amounts:

(i) For corruption offenses in the public and private sectors and for misappropriation, the maximum financial penalty must be at least 5% of total worldwide turnover or €40 million.

(ii)  For trading in influence, obstruction of justice and enrichment from corruption offenses, the maximum financial penalty must be at least 3% of total worldwide turnover or €24 million.

Legal persons may also face other measures, including (i) exclusion from the right to public benefits or aid; (ii) exclusion from public funding, including public tenders, grants, concessions, and licenses; (iii) a temporary or permanent ban on carrying out commercial activities; (iv) withdrawal of licenses and permits for activities that gave rise to the offense; (v) annulment or termination by public authorities of a contract connected to the offense; (vi) placement under judicial supervision; (vii) judicial liquidation; and (viii) closure of the establishments used to commit the offense.

Aggravating and mitigating circumstances

The Anticorruption Directive provides that committing an offense as part of a criminal organization constitutes an aggravating circumstance. Other aggravating circumstances include holding a high-level position, having a prior conviction for comparable offenses, obtaining a substantial benefit, exercising investigative or judicial decision-making functions, or exploiting the vulnerable situation of a person involved in the offense.

As mitigating circumstances for legal persons, the Anticorruption Directive identifies the implementation of effective compliance programs to prevent corruption, the prompt and voluntary disclosure of the offense to the authorities, and the adoption of corrective measures. Other mitigating circumstances include providing the competent authorities with information that helps identify or prosecute other offenders, or locate evidence.

Corruption prevention and specialized bodies

The Anticorruption Directive requires Member States to adopt measures to prevent corruption. These measures include information and awareness-raising campaigns, as well as initiatives designed to promote a culture of integrity and transparency in public administration. Member States must also adopt and publish a national strategy for preventing and combating corruption.

Member States must likewise ensure the existence of specialized bodies or organizational units responsible for preventing and combating corruption. Portugal has already implemented many of these measures through the General Regime for the Prevention of Corruption, adopted following the National Anticorruption Strategy 2020–2024, and through the creation of the National Anticorruption Mechanism (MENAC).

Protection of whistleblowers and investigative tools

The Anticorruption Directive strengthens protection for whistleblowers. It provides that Directive (EU) 2019/1937 applies to the reporting of corruption offenses and to the protection of those who report them. Member States must also ensure that anyone who reports offenses, provides evidence or cooperates with the authorities has access to protection, support and assistance measures in criminal proceedings. The Anticorruption Directive further requires effective and proportionate investigative tools.

Transposition and entry into force

The Anticorruption Directive enters into force 20 days after its publication in the OJEU. Member States have 24 months to transpose it into national law (i.e., until June 1, 2028). An exception applies to the provisions on sectoral risk assessments and national strategies, for which the transposition deadline is 36 months (i.e., until June 1, 2029).

Impact on Portugal

Transposing the Anticorruption Directive will require a thorough assessment of the Portuguese criminal law framework. As regards penalties for individuals, Portugal already meets the minimum thresholds required for the most serious offenses.

However, the following areas of potential noncompliance have been identified and will require legislative action:

(i)  Penalties for legal persons: As explained, the Anticorruption Directive requires maximum fines of at least (a) 5% of worldwide turnover (or €40 million) for corruption offenses in the public and private sectors and for misappropriation; and (ii) 3% of worldwide turnover (or €24 million) for trading in influence, obstruction of justice and enrichment from corruption offenses. By contrast, under the current Portuguese criminal liability regime, each daily fine ranges from €100 to €10,000. The court sets the amount based on the convicted party’s economic and financial situation, as well as its employment expenses. Therefore, to comply with the Anticorruption Directive, Portugal will need to revise its current criteria for setting fines.

(ii) Enrichment from corruption offenses: The Anticorruption Directive requires Member States to criminalize the intentional acquisition, possession or use of property by a public official who is aware that it constitutes proceeds from corruption offenses committed by another public official. Portugal currently has no equivalent standalone criminal offense; therefore, it will need to introduce one, with a maximum prison sentence of at least four years.

(iii)  Obstruction of justice specific to corruption offenses: Although Portugal already criminalizes conduct such as coercion of a public official (article 347 of the Portuguese Criminal Code) and false testimony (article 360 of the Portuguese Criminal Code), it may need to verify whether those offenses fully cover the scope required by the Anticorruption Directive. Specifically, it must assess whether they cover the use of physical force, threats or intimidation to interfere with testimony or evidence in proceedings concerning a corruption offense.