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1 PROPOSAL of law No. 173/X explanatory memorandum to the Bill now presented establishes the regime for the prevention and suppression of money laundering and terrorist financing, the transposition into the internal legal order of the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on money laundering and terrorist financing as well as of Directive No. 2006/70/EC of 1 August 2006 laying down measures and instructions for the transposition of Directive No. 2005/60/EC, and adapting the national system to international standards in force, and in particular to the 40 + 9 recommendations of the FATF – Financial Action Task Force on money laundering and the financing of terrorism , and the Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from Crime and the financing of terrorism, signed by Portugal on 17 May 2005. This proposal of law to first amendment to law No. 52/2003, of 22 August, the anti-terrorism Act, and repeals the prevention and repression of money laundering of Illicit Origin, the law No. 11/2004, of March 27. In relation to law No. 11/2004, of March 27, currently in force, covering the financing of terrorism and is created the crime of terrorist financing, by adding article 5 to the law No. 52/2003, of 22 August, changing the articles 2, 4 and 8 of this law.
On the other hand, this Bill establishes duties enhanced identification, communication, cooperation and diligence, distinguishing between general duties of entities subject and special duties for financial institutions and non-financial entities. The duties of cooperation between financial and non-financial entities subject to the authorities and with the Financial Intelligence Unit (FIU) of the judicial police, are reinforced and, for your time, the FIU also sees legally enshrined its powers, especially 2 access to information. The set of entities subject to financial and non-financial, in particular, is extended to entities that provide representation and administration services to collective interests and people who build for sale, without intermediaries. Is enshrined the concept of ' politically exposed persons ', as people who play or played until a year ago, senior officials of political or public, how organizations can offer special risk of bleaching. Sets the evaluation criteria based on risk of operations, with a view to identifying situations of ' reduced risk of bleaching» and «occasional or limited financial activity» and determined stricter measures to monitor the clientele, by the owners of the casinos. With regard to the sanctions regime, the regime contained in this Bill can be considered innovative in that it considers that the violation of regulatory standards is a misdemeanour punishable under the law, the offences are no longer divided into administrative offences and particularly serious offences, by passing a ban on accessory penalty practice, or activity to a misdemeanour respects and assigns the sanctioning jurisdiction to the administrative authorities. Must be listened to the Superior Council of the Magistracy, the High Council of the Public Ministry and the National Commission for Data Protection.
So: we have) (d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: chapter I General provisions section I object and concepts 1-3 article 1 subject-matter this law establishes preventive and repressive measures to combat laundering of illicit provenance advantages and the financing of terrorism and transposes to the internal legal order the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005, and the directive 2006/70/EC of 1 August 2006, concerning the prevention of the use of the financial system and the activities and professions specially designated for the purpose of money laundering and terrorist financing. 2-money laundering and terrorist financing are prohibited and punished under the criminal law applicable.
Article 2 concepts for the purposes of this law: 1) "entities subject», the entities referred to in articles 3 and 4 of this Act. 2) ' Business Relationship ' means a commercial or professional relationship between subject and its customers that, at the moment in which, it is intended to be or is lasting. 3) ' occasional Transaction ' means any transaction carried out by entities subject outside the scope of a business relationship already established. 4) «centers of collective interests without legal personality», the autonomous assets, such as real estate condos in horizontal property, inheritances and trusts foreign law laying, when and as they are recognized by national law. 5) ' beneficial owner ' means the natural person on whose behalf a transaction or activity is carried out or who ultimately owns or controls the customer and shall include at least: a) in the case of the client being a legal entity corporate in nature: i) the natural persons who ultimately own or control property, directly or indirectly, at least , the equivalent of 25% of the capital or of the voting rights of a legal person, which is not listed on a regulated market society 4 1 subject to disclosure requirements consistent with Community legislation or subject to equivalent international standards; II) natural persons who, otherwise, exercise control over the management of the legal person. b) in the case of the client being a legal entity non-corporate, as a Foundation, or a center of collective interests without legal personality, that administer and distribute funds: i) The natural persons benefiting from at least 25% of your heritage, when the future beneficiaries have already been determined; II) the category of people whose main interest the legal person or the center of collective interests without legal personality has been constituted or is your activity, when the future beneficiaries have not yet been determined; III) natural persons exercising control over at least 25% of the assets of the legal person or the center of collective interests without legal personality. 6) ' politically exposed persons ' means natural persons who play, or have played until a year ago, senior officials of political or public nature, as well as members close to your family and people who admittedly have with they close relations corporate or commercial in nature. For the purposes of this paragraph: a) senior officials of political or public: i) heads of State, heads of Government and Government officials, including Ministers, Secretaries and under secretaries of State; II) members or members of national parliamentary chambers. III) members of Supreme courts, of constitutional courts, courts of Auditors and other high-level judicial bodies whose decisions cannot be appealed, except in exceptional circumstances; IV) members of the management and supervisory bodies of central banks; v) heads of diplomatic missions and consular posts; vi) high-ranking Officers of the armed forces; 5 vii) members of the management bodies and supervision of public enterprises; VIII) members of executive bodies of the European communities and of the European Central Bank; IX) members of executive bodies of international organizations. b) members close to the family: i) the spouse or de facto attached; II) parents, their children and their spouses or de facto United. c) People with recognised and close ties to corporate or commercial nature: i) Any natural person, who is notoriously known as joint owner with the holder of high office or public policy nature of a legal person, a centre of collective interests without legal personality or he has commercial relations nearby; II) Any individual who is owner of the capital or of the voting rights of a legal person or a Heritage Centre of collective interests without legal personality, which is notoriously known as having the sole beneficial owner the holder of high office or public policy nature. 7) «facade» Bank, a credit institution incorporated in a State or jurisdiction, in which that does not have a physical presence that involves administration and management and that is not part of a regulated financial group. 8) ' third country equivalent ', which appear in order of the Member of Government responsible for the area of finance, such as having equivalent national regimes in preventing money laundering and terrorist financing and oversight of these duties, and in respect of information requirements applicable to listed companies in regulated market, which appear on the list approved by the securities market Commission (CMVM). 9) «company Service Providers, other legal persons and centres of collective interests without legal personality ' means any person who, in the course of their duties, provides the following services to third parties: the) Constitution of companies, other legal persons or centres of collective interests without legal personality as well as the provision of related services 6 of representation, management and administration to these entities or to collective interests without legal personality; b) performance of administrator roles, Secretary or partner in a company or other legal person or similar position in centre of collective interests without legal personality. 10) ' FIU ', the central national unit responsible for receiving, analysing and disseminating information on suspicion of money laundering or financing of terrorism, established by Decree-Law No. 304/2002, of 13 December.
SECTION II scope article 3 1-Financial Entities Are subject to the provisions of this law the following entities with headquarters in national territory: the) credit institutions; b) investment firms and other financial companies; c) entities that have the your Office management or marketing of venture capital funds; d) collective investment undertakings marketing their units; and) insurance companies and insurance intermediaries engaged in the activity referred to in point (c)) of article 5 of Decree-Law No. 144/2006, of July 31, with the exception of insurance intermediaries linked mentioned in article 8 of that Ordinance, to the extent that they must pursue activities within the branch «Life»; f) pension funds companies; g) securitisation companies; h) companies and venture capital investors; I) companies of investment advice; j) Companies which market goods or services used for the investment in tangible assets 7. 2-Are also covered branches located in Portuguese territory of the entities referred to in the preceding paragraph based abroad as well as foreign financial branches. 3. this law applies even to the entities providing postal services and the Institute for the management of Treasury and Public credit, I. P., to the extent that provide financial services to the public. 4-for the purposes of this Act, the entities referred to in the preceding paragraphs are known as ' financial institutions '.
Article 4 non-financial Entities Are subject to the provisions of this law the following entities, carrying out activity in national territory: the farming game Dealers) in casinos; b) Entities paying prize money on gambling or lotteries; c) Entities active in real estate and purchase and resale of real estate as well as construction entities that proceed to the direct sale of real estate; d) Traders engaged goods whose payment is made in cash, in an amount equal to or greater than € 15 000, whether the transaction is carried out by means of a single operation or in several operations which appear to be linked; e) statutory auditors, auditors, external accountants and tax advisors; f) Notaries, record-keeping, conservative lawyers, solicitors and other independent professionals, incorporated in society or in individual practice, involved or assist, on behalf of a client or otherwise in operations: i) Of purchase and sale of real estate, commercial establishments and social equity; II) management of funds, securities or other assets belonging to clients; 8 iii) Of opening and managing bank accounts, savings accounts or securities; IV) creation, operation or management of companies or structures of a similar nature, as well as centers of collective interests without legal personality; v) or real estate, Financial in client representation; vi) of alienation and acquisition of rights to practitioners of sports professionals. g) service providers to companies, other legal persons or centres of collective interests without legal personality, that are not covered in paragraph 1(e)) and f).
Article 5 activities carried out under attachment and limited to this Act shall not apply to companies in the tourist and travel sectors, permitted to exercise, so accessory and limited manual exchange activity, pursuant to Decree-Law No. 295/2003, of 21 November.
CHAPTER II Obligations of the entities subject section I General Obligations article 6 Duties The entities subject are required, in the exercise of their activity, to the achievement of the following general duties: a) Duty of identification; b) duty of care; c) Duty to refuse; d) Duty of conservation; 9 e) Duty of examination; f) Duty of communication; g) Duty of abstention; h) Duty of collaboration; I) duty of secrecy; (j)); l) training Duty.
Article 7 duty to identify 1-The entities subject shall require and verify the identity of their customers and their representatives: a) When establishing business relations; b) When carrying out occasional transactions amounting less than € 15 000, whether the transaction is carried out by means of a single operation or in several operations that appear to be linked; c) when you suspect transactions, regardless of your value and any exceptions or threshold, may be related to the crime of money laundering or terrorist financing, taking into account, inter alia, your nature, complexity, atypical or unusual nature in relation to the profile or customer activity, amounts involved, frequency, place of origin and destination, economic and financial situation of actors or means of payment used; d) When there are doubts about the veracity or adequacy of previously obtained customer identification. 2-in the case of farming game dealers in casinos and of entities paying premiums of betting or lotteries, the duty of identification applies from the predicted values, respectively, in subparagraph (a)) of paragraph 1 of article 32 and article 33 3-verification of identity should be carried out: a) in the case of natural persons, upon presentation of original document with valid photo , which included the full name, date of birth and nationality; 10 b) in the case of legal persons, through the collective person identification card, business registration certificate or, in the case of non-residents in national territory, of an equivalent document. 4-When the customer is a legal person or a collective interests Centre without legal personality or, in any case, where there is knowledge or founded suspicion that a customer does not act on its own, should the entities subject to obtain information enabling client to know the identity of the beneficial owner, the appropriate measures should be taken to check the same on the basis of the risk of money laundering or terrorist financing.
Article 8 Time 1 identity verification-verification of the identity of the client, its representatives and, where applicable, the beneficial owner must take place at a time when the business relationship is established or before performing any transaction. 2-Notwithstanding the previous paragraph, when the risk of money laundering or terrorist financing is limited and if otherwise not result from legal or regulatory standard applicable to the activity of the subject entity, the identity verification referred to in the preceding paragraph may be completed after the start of the business relationship, if this show is indispensable for the execution of the operation and the identification procedures be completed as soon as possible. 3-in the case of bank deposit accounts, credit institutions cannot allow any debit or credit entries in the account following the initial deposit, make any payment instruments on the account or make any changes on your title, while not verified the identity of the client, in accordance with the legal or regulatory provisions applicable. 4-in the case of insurance contracts «Life», the verification of the identity of the beneficiary of the policy can occur after established business relation, but always before or at the time of the payment of any benefit either before or at the date on which the beneficiary intends to exercise the rights conferred by the policy.
11 article 9 1-duty of care beyond the identification of customers, representatives and beneficial owners, the entities subject should: a) take appropriate measures to understand the ownership and control structure of the customer, who is a legal person or a collective interests Centre without legal personality; b) information on the purpose and intended nature of the business relationship; c) information, when the client's risk profile or the characteristics of the operation is consistent, on the origin and the destination of the funds moved within a business relationship or carry out occasional transactions; d) maintain a continuous monitoring business relation, in order to ensure that such transactions are in line with the knowledge that the entity has activities and risk profile of the customer; and Keep updated the elements of) information obtained in the course of the business relationship. 2-the procedures of due diligence in relation to the clientele are applicable to new customers to existing, regularly and depending on the level of risk.
Article 10 Adaptation to the degree of risk 1-in fulfilling the duties of due diligence and identification provided for in articles 7 and 9, the entities subject can adapt the nature and extent of the verification procedures and due diligence measures, depending on the risk associated with the type of customer, business relationship, product, the transaction and the origin or destination of the funds. 2-The entities subject must be able to demonstrate the adequacy of the procedures adopted in accordance with the preceding paragraph, where requested by the relevant supervisory authority or supervision.
12 article 11 simplified duty of care 1 -Except where there are suspicions of money laundering or terrorist financing, the entities subject are exempted from compliance with the obligations set out in articles 7 and 9 in the following situations: a) when the client is a financial institution established in any EU Member State or in a third country equivalent in preventing money laundering and terrorist financing; (b)) When the customer is a listed company whose securities have been admitted to trading on a regulated market, within the meaning of article 199.º of Código dos Valores Mobiliários, as amended by Decree-Law No. 357-A/2007, of October 31, in any Member State of the European Union, as well as listed companies on the markets of third countries and which are subject to disclosure requirements of information equivalent to those required by Community law as publicity carried out by the relevant supervisory authority; c) When the client is the State, the autonomous regions or local authorities or legal persons governed by public law, of any kind, integrated into central, regional or local administration; d) When the client is an authority or public body subject to transparent accounting practices and subject to supervision, including the institutions provided for in the Treaty establishing the European Community and others that may be listed in list to disclose by order of the Member of Government responsible for the area of finance; and When the client is the) entity that provides services or the Office of management of the Treasury and Public credit, I. P. 2-the provisions of the preceding paragraph shall also apply to beneficial owners of client accounts opened in credit institutions, in physical form by lawyers or solicitors based in Portugal, since it is ensured, by declaration lodged before the institution where the account is open and in the moment of opening , the immediate availability of the identity of the beneficial owner, when requested by the credit institution. 3-in the cases provided for in the preceding paragraphs, the subject must, in any case 13, collect enough information to verify if the customer falls into one of the categories or professions listed, as well as monitor the negotiating relationship in order to be able to detect complex transactions or abnormally high value that does not appear to have economic objective or end lawful.
Article 12 duty of care reinforced 1-without prejudice to compliance with the provisions of articles 7 and 9, the subject must apply additional due diligence measures in respect of clients and operations, by your nature or characteristics, may be a greater risk of money laundering or terrorist financing. 2-are always increased due diligence measures applicable to operations carried out at a distance and particularly favouring the anonymity, to transactions carried out with politically exposed persons residing outside the national territory, Bank matching operations with credit institutions established in third countries and any other designated by the supervisory authorities or the relevant sector surveillance , since legally empowered to that end. 3-Without prejudice to regulations issued by the competent authorities, in cases where the operation takes place without the client or your representative are physically present, verification of identity can be supplemented by one of the following means: a) additional documents or information considered appropriate to verify or certify the client supplied data provided, inter alia, by a financial institution; (b)) the first payment for the operation through an account opened in the customer's name with a credit institution. 4-As business relations or occasional transactions with politically exposed persons residing outside the national territory, the entities subject should: a) have appropriate risk-based procedures to determine if the client can be considered a politically exposed person; b) obtain immediate hierarchy before establishing business relationships with such customers; c) take the necessary measures to determine the source of the heritage and of the 14 funds involved in business relationships or occasional transactions; d) continuous monitoring plus the business relation. 5-the arrangement provided for in the preceding paragraph shall continue to apply to those who, having ceased to have the quality of politically exposed person, continue to represent an increased risk of money laundering or terrorist financing, due to your profile or the nature of the operations carried out.
Article 13 obligation to refuse 1-The entities subject shall refuse any operation in bank account, start a business relationship or perform any one-time transaction, when: a) are not provided the elements provided for in article 7 to the client ID, your representative or the beneficial owner, if any; (b)) is not provided the information referred to in article 9 on the structure of ownership and control of the client, the nature and purpose of business relation and the source and destination of the funds. 2-whenever refusal provided for in paragraph 1, the entities subject must analyze the circumstances that determined and, if they suspect that the situation may be related to the Commission of a crime of money laundering or terrorist financing, should carry out the communication provided for in article 16 and ponder for the business relation.
Article 14 Obligation of conservation-1 copies or references to documents proving the fulfilment of the duty of due diligence and identification must be kept for a period of seven years after the time when the identification if processed or, in the case of the business relationship, after the expiry of the same. 2-the originals, copies, references or any long-term holders with identical probative force, supporting documents and the records of operations must always be preserved, in order to allow for the reconstitution of the operation, for a period of seven years from the date of your execution, though, if you insert a 15 business relation, this last has already finished.
Article 15 obligation to exam 1-Without prejudice to the duty of care, the entities subject shall examine with special care and attention, according to your professional experience, any conduct, or activity operation whose elements that characterize the become particularly likely could be related to money laundering or terrorist financing. 2-for the purposes of the preceding paragraph, are particularly the following elements characterize: a) the nature, purpose, frequency, complexity, the unusual and the atypical challenges presented during the conduct, activity or operation; (b)) the apparent lack of an economic objective or a lawful purpose related to conduct, activity or operation; c) the amount, source and destination of the funds moved; d) The means of payment used; e) nature, the activity, the operating standard and the profile of participants. f) the type of transaction or product that can encourage especially the anonymity. 3-the results of the test referred to in paragraph 1, shall be reduced to writing and kept for at least five years, becoming available to the Auditors where they exist and the supervisory and oversight authorities. 4-the measurement of the degree of suspicion evidenced by conduct, activity or operation does not necessarily presupposes the existence of any type of documentation confirming the suspicion before running the assessment of specific circumstances, in the light of the criteria of due diligence to a professional, in the analysis of the situation.
Article 16 Duty 1 communication-The entities subject must, by your own initiative, forthwith inform the FIU whenever they know, suspect or have reasonable grounds to suspect that took place, is underway or has been attempted a 16 operation likely to set up the practice of the crime of money laundering or terrorist financing. 2-the information provided pursuant to paragraph 1 may only be used in criminal proceedings, and could not be revealed under any circumstances, the identity of the donor.
Article 17 Duty of abstention 1-The entities subject should refrain from performing any operation where they know or suspect to be related to the practice of crimes of money laundering or terrorist financing. 2-the auditee shall inform the FIU that abstained from performing the operation, which immediately transmits this information to the Attorney General of the Republic, may determine the suspension of execution of the operation suspected notifying, the subject entity. 3-the operation suspended may, however, be carried out if the order of suspension is not confirmed by the judge of criminal instruction within two working days of communication held by the entity is subject, in accordance with the preceding paragraph. 4-in the case of the subject entity considers that the abstention referred to in paragraph 1 is not possible, or that, after consultation with the Financial Intelligence Unit, may be likely to prejudice the prevention or future research money laundering or terrorist financing, the operation can be performed, and that the subject entity provide, immediately, that the information relating to the Unit operation.
Article 18 Duty of collaboration subject entities should pay promptly the collaboration required by the financial intelligence unit for the performance of their duties, by the judicial authority responsible for the direction of the investigation or by the authorities responsible for the enforcement of the obligations provided for in this law, in accordance with their legal skills, in particular by providing the information and presenting the documents or records requested. 17 article 19 Duty of secret 1-The entities subject, as well as the members of their governing bodies, in exercising management functions, management or leadership, its employees, representatives and other persons serving them on a permanent, temporary or casual, may not reveal to the client or to third parties that transmitted to the financial intelligence unit communications legally due or which is an ongoing criminal investigation. 2-does not constitute a breach of the duty set out in paragraph 1, the information disclosure, legally due, to the authorities of supervision or inspection of duties provided for in this law, including professional regulatory bodies of activities or professions subject to this law. 3-the provisions of paragraph 1 also does not prevent the dissemination of information, for the purpose of the prevention of money laundering and terrorist financing: a) between institutions forming part of the same corporate group, as defined in articles 2 and 3 of Decree-Law No. 145/2006, of July 31, and that established in Member States or third countries in preventing money laundering and financing of terrorism; b) Between persons referred to in paragraph 1(e)) and f) article 4 established in a Member State or in a third country equivalent in preventing money laundering and terrorist financing, providing service or are employees of the same legal person or a group of companies to which this belongs, with property or joint management bodies. 4-the provisions of paragraph 1 is also not preventing that the financial institutions and non-financial entities referred to in paragraph 1(e)) and f) of article 4 to exchange between themselves information respecting a common negotiating relationship on the same client, since to do so with the sole purpose of preventing money laundering and the financing of terrorism and all entities are subject to equivalent obligations of professional secrecy and personal data protection and they are established in EU Member States or equivalent third country relating to the prevention of money laundering and terrorist financing.
18 article 20 protection in provision of information 1-the information given in good faith by entities subject, in fulfilling the obligations listed articles 16, 17 and 18 do not constitute breach of any duty of secrecy imposed by legislative, regulatory or contractual, nor imply, for those who pay, liability of any kind. 2-Who, although with mere negligence, reveal or facilitate the discovery of the identity of who has provided information under the articles referred to in the preceding paragraph, is punished with imprisonment up to three years or with fine penalty.
Article 21 Duty of The entities subject control must define and implement policies and procedures that are appropriate for the fulfilment of the obligations provided for in this law, in particular with regard to internal control, risk assessment and management and internal audit in order to effectively prevent money laundering and the financing of terrorism.
Article 22 training Duty 1-The entities subject shall take the necessary measures to ensure that the managers and employees, whose functions are relevant to the purpose of the prevention of money laundering and terrorist financing, have an adequate knowledge of the obligations imposed by the legislation and regulations in force in this area. 2-the measures provided for in the preceding paragraph shall include specific and regular training programmes, appropriate to each sector of activity, which enable the recipients to recognise operations which may be related to the practice of those crimes and to act in accordance with the provisions of this Act and its regulatory standards.
19 section II specific Duties of financial institutions article 23 specific Duties 1-financial entities are subject to the duties set out in article 6, with the specifications provided for in the following articles and the rules governing the mentioned duties, issued by the respective supervisory authorities, in accordance with the provisions of this law and of the diplomas which regulate its activity. 2-In case some is allowed the opening of accounts or anonymous passbooks.
Article 24 Implementation of obligations by third parties 1-financial entities, with the exception of the bureaux de change, shall be authorised to allow execution of the duties of identification and due diligence in relation to customers as set out in article 7 and in (a)) c) of paragraph 1 of article 9, a third party, in accordance with the regulations by the respective supervisory authorities When this is: a) a financial institution referred to in paragraph 1 of article 3, established in national territory and that is not an Exchange Office; b) A financial institution of a similar nature to those authorized in this paragraph, based on the European Union or third country equivalent in preventing money laundering and terrorist financing. 2-financial entities which have recourse to third parties to ensure compliance with the obligations laid down in the preceding paragraph shall retain responsibility for the accurate fulfilment of those obligations as if they were his direct and performers must have immediate access to information concerning its implementation.
20 article 25 specific Duty of diligence 1-simplified Safe when there are suspicions of money laundering or terrorist financing, financial entities are exempted from compliance with the obligations set out in articles 7 and 9, in the following situations: a) in the case of issuance of electronic money, whose monetary value stored electronically, represent a claim on the issuer which is consideration for the receipt of funds in an amount not less in value than the monetary value issued and accepted by several companies of issuer, if the device cannot be reloaded, or can be, when the limit that can be traded during the calendar year does not exceed € 2500, unless an amount equal to € 1000 is rescued in that calendar year by the carrier in accordance with article 3 of Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000; b) On insurance contracts «Life» and of pension funds or savings products of a similar nature, whose annual premium or contribution does not exceed € 1 000, or whose single premium does not exceed € 2 500; c) insurance contracts associated with pension plans as long as they don't contain a rescue clause or can be used to secure loans; d) In pension schemes, supplementary pension plans or similar arrangements for the payment of retirement benefits to employees, with contributions made by wage deduction and whose regime look to beneficiaries the possibility of transfer of rights. 2-financial entities are also exempted from compliance with the obligation laid down in article 7 in insurance contracts, the operations branch «Life» and pension plans, since the payment of the premium or contribution is made by debit card or cheque drawn on an account opened in the name of the insured, in a credit institution subject to the duties provided for in article 6 article 26 21 specific Duty of diligence reinforced 1-The financial institutions which are credit institutions shall also enhanced due diligence measures cross-border bank correspondence relations with institutions established in a third country. 2-for the purposes of the preceding paragraph, credit institutions shall obtain sufficient information on the corresponding institution in order to understand the nature of your activities, assess their internal control procedures relating to the prevention of money laundering and terrorist financing and to assess, on the basis of information publicly known, your reputation and characteristics of their supervision. 3-the relation of correspondence shall be authorized the immediate hierarchy level and their respective responsibilities must be reduced to writing. 4-in the case of the relationship involved matching the corresponding transfer accounts, the credit institution must confirm that it was verified the identity of the client that offers direct access to the account and that is subject to the duty of care on the part of the respondent institution, ensuring that those elements may be provided at your request.
Article 27 specific Duty of communication In case of operations that reveal special risk of money laundering or terrorist financing, notably when related to a particular country or jurisdiction subject to additional countermeasures decided by the Council of the European Union, the supervisory authorities of the respective sector can determine the duty of communication of such transactions to the financial intelligence unit When your amount is equal to or greater than € 5 000.
22 article 28 specific Duty of cooperation financial entities must possess systems and tools to enable them to respond, swiftly and fully, to requests for information made by the financial intelligence unit and legally competent judicial authorities, for determining if maintain or have maintained in the past five years, business relations with a particular natural or legal person and what is the nature of these relationships.
Article 29 branches and subsidiaries in third countries 1-financial entities, in respect of their branches or subsidiaries in which they hold a majority ownership established in countries third parties, must: a) Apply measures equivalent to those laid down in this Act in respect of duties of due diligence, identification, conservation and training; b) Communicate the policies and internal procedures defined in compliance with the provisions of article 21, which are applied within the framework of activity of branches and subsidiaries. 2-If the legislation of the third country does not permit application of the measures provided for in point (a)) of the preceding paragraph, the financial institutions must inform their supervisors and take additional measures designed to prevent the risk of money laundering and terrorist financing.
Article 30 1 facade banks-credit institutions shall establish correspondence relations with shell banks. 2-credit institutions shall yet strive not to establish relations of correspondence with other credit institutions that admittedly allow their accounts to be used by shell banks. 3-as soon as the institutions are aware of who maintain a ratio of 23 to entities referred to in the previous paragraphs, must put an end to that relationship.
Section III specific Duties of non-financial entities article 31 Duties specific to non-financial entities are subject to the duties set out in article 6, with the specifications provided for in the following articles and the rules issued by the Member of Government responsible for the respective area of activity or by legally competent surveillance authorities to that effect.
Article 32 Dealers in casinos game exploration 1-farming game dealers in casinos are subject to the following obligations: a) identify regulars and verify your identity outside the game room or when they purchase or Exchange gambling chips, or conventional symbols which can be used for play, for a total amount equal to or greater than € 2 000 , in the same match in traditional or game rooms in the same operation in the remaining game rooms; b) Issue, at arcades, their checks in Exchange for tokens or conventional symbols only the order of the regulars identified that, in the same match, have acquired through bank card or cheque not unusable and the maximum amount equivalent to the sum of those acquisitions; c) Issue, at arcades and vending machines, their checks for premium payments only to the order of the patrons awarded previously identified and resulting from combinations of the payment plan of machines or systems for the jackpot prize. 2-the identity of the regulars must always be registered. 24 3-the checks referred to in (b)) and c) of paragraph 1 are obligatorily nominative and crossed, with indication of forbidding endorsement clause. 4-The communications to do pursuant to this law shall be effected by the administration of the concessionary company.
Article 33 Entities paying premiums of betting or lotteries entities that proceed to payments to winners of prizes of betting or lotteries, of an amount equal to or greater than € 5 000, should proceed to the identification and verification of the identity of the payee.
Article 34 entities with real estate activities 1-The natural or legal persons engaged in the business of real estate, as well as the activity of buying, selling, buying for resale or exchange of real estate, and, directly or indirectly, decide, drive, schedule, manage and finance, with own resources or others, construction of buildings, with a view to further your transmission or transfer , that title is, shall, before the Office of construction and real estate, i. p.: a) to the communication in accordance with legally provided for, the date of commencement of the activity of real estate, the activity of buying, selling, buying for resale or exchange of real estate, or the activity of, directly or indirectly, decide, drive, schedule, manage and finance, with own resources or unrelated , construction of buildings, with a view to further your transmission or transfer, that title is, accompanied by the access code to the permanent certificate of commercial registration, within 60 days from the date of verification of any of these situations; b) to sending every six months on its own model of the following information on each transaction made: i) clear identification of stakeholders; II) overall amount of legal business; III) Mention of the respective securities representing; 25 iv) means of payment used; v) identification of the property. 2-The natural or legal persons, who have already started the activities referred to in the preceding paragraph, shall make the notification referred to in subparagraph (a)) of this number within 90 days from the date of entry into force of this law. 3-the notification referred to in (a)) of paragraph 1 shall be accompanied by certificate of the commercial register, if the entity does not have the permanent certificate referred to in that subparagraph.
Article 35 Lawyers and solicitors 1-in the line of duty of communication provided for in article 16, the lawyers and bailiffs communicate suspicious operations, respectively, the Chairman of the Bar Association and the President of the Chamber of bailiffs, these entities to communicate, quickly and without filtering, the Financial Intelligence Unit, without prejudice to the next paragraph. 2-in the case of lawyers or solicitors and being concerned the operations referred to in article 4 (f)), are not covered by the duty of communication, the information obtained in the context of the evaluation of the legal situation of the client, within the framework of legal advice, in the exercise of your mission of Defense or representation of the client in legal proceedings, or regarding a lawsuit , including advice on the way to propose or avoid a lawsuit, as well as the information that is obtained before, during or after the process. 3-the preceding paragraphs also applies to the exercise by lawyers and solicitors duties of abstention and of cooperation provided for in articles 17 and 18, competing for those professionals, as part of the duty of cooperation, as soon as they are requested by the judicial authority assistance, they shall immediately inform the Chairman of the bar association or the President of the Chamber of bailiffs, providing these elements required for the purposes of article 36, paragraph 1 26 Deterrence of the practice of the activity
Try a deterrent client to perform an act or activity considered illegal under this law, by the persons referred to in paragraph 1(e)) and f) article 4 does not configure disclosure prohibited pursuant to paragraph 1 of article 19 article 37 specific training Duty in the case of the non-financial entity subject be a natural person who performs the work your as a worker of a juridical person, the duty of training laid down in article 22 relates to the legal person.
Chapter III Supervision and supervision article 38 the enforcement Authorities of the obligations provided for in this law shall: a) in the case of financial institutions: (i)) to the Bank of Portugal, the Comissão do Mercado de Valores Mobiliários and the Instituto de Seguros de Portugal, within their respective competence; II) to the Minister responsible for finance in respect of the Management Institute of the Treasury and Public credit, I. P. b) in the case of non-financial entities: i) Inspection Service of Tourism of Portugal's games, I. P., in respect of the entities referred to in points (a)) and b) of article 4; II) the construction and the real estate Institute, i. p., in respect of the entities referred to in article 4 (c)); III) to food security and economic Authority in respect of the entities referred to in point (d)) of article 4 and 27 external auditors, tax advisors, service providers, companies and centres of collective interests without legal personality, and other independent professionals referred to in point (f)) of article 4, whenever they are not subject to the supervision of another authority referred to in this subparagraph. c) to the order of statutory auditors for the statutory auditors; (d)) to the Board of Auditors, Technicians in respect of technicians; and) the Institute and notary fees, I. P., in respect of notaries and the Conservatives of records; f) to the order of Lawyers, for lawyers; g) the Chamber of bailiffs, in respect of solicitors.
Article 39 1-Skills within their respective competence, supervisory authorities and supervisory bodies referred to in the previous article: the) regulate the conditions for exercising the duties of information and clarification, as well as the instruments, mechanisms and procedures for application, required for the effective fulfilment of the obligations laid down in chapter II, always in compliance with the principles of legality, necessity, appropriateness and proportionality; b) monitor compliance with the standards laid down in this law and the corresponding implementing sectoral regulatory instruments; c) set up and instruct their contra-ordenacionais procedures and, as appropriate, apply or propose the application of sanctions. 2-The financial sector supervisory authorities shall carry out the consultations, directly or through the institutions themselves, before issuing regulations on the matter provided for in this law, so as to avoid any possible overlap, gap or opposition between their regulatory standards. 28 article 40 Duty of communication of authorities 1-where, in the exercise of its functions, the supervisory authorities of financial institutions and supervision of non-financial entities are aware or suspect of facts likely to be able to set up the practice of the crime of money laundering or terrorist financing, should report them promptly to the financial intelligence unit, if communication has not yet been held. 2-the duty of communication provided for in the preceding paragraph shall also apply to the authorities responsible for the supervision of the management company of securities markets, management companies of settlement systems and centralized systems of securities and management companies of foreign exchange markets. 3-The information supplied pursuant to paragraphs 1 and 2 shall apply the provisions of article 20 Chapter IV Information and statistics article 41 access to information To fully carry out its role of preventing money laundering and financing of terrorism, the FIU has access, in time, to financial information, administrative, judicial and police , which shall be subject to the provisions of paragraph 2 of article 16 Article 42 dissemination of information the supervisory authorities of the financial sector and the surveillance of non-financial entities, including professional regulatory bodies, as well as to the financial intelligence unit, as part of their legal duties and responsibilities, issuing alerts and disseminate up-to-date information on known trends and practices 29 in order to prevent money laundering and the financing of terrorism.
Article 43 feedback the FIU shall give timely feedback information to entities subject to supervision authorities and supervision on the forwarding and the result of communications suspected of money laundering and terrorist financing by those reported.
Article 44 collection, maintenance and publication of statistical data 1-the Financial Intelligence Unit to prepare and keep updated statistical data on the number of suspicious transactions reported and the movement and result of such communications. 2-judicial and law enforcement authorities must send each year to the Directorate-General for Justice policy the statistical data relating to money laundering and terrorist financing, in particular the number of cases investigated, of people accused in the lawsuit of sentenced persons, as well as the amount of property frozen, seized or confiscated in favour of the State. 3-the Directorate-General for Justice policy to proceed with publication of the statistical data collected on the prevention of money laundering and terrorist financing.
Chapter V administrative Regime section I General provisions article 45 30 Application in space regardless of the nationality of the agent, the provisions of this chapter shall apply to: b) Facts committed in Portuguese territory; c) Facts committed outside national territory that are responsible the entities referred to in articles 3 and 4, acting through branches or providing services, as well as persons who, in relation to such entities, in any of the situations referred to in subparagraph (c)) of paragraph 1 of the following article; d) Facts practised on board ships or Portuguese aircraft, except Treaty or International Convention to the contrary.
Article 46 1-Responsibility for committing the offences referred to in this chapter may be held liable: a) financial entities; b) non-financial entities, with the exception of lawyers and solicitors; c) natural persons who are members of the governing bodies of the entities referred to in points (a) or in exercising management positions, leadership or management, or acting on your representation, legal or voluntary, and, yet, in the case of breach of the obligation laid down in article 19, their employees and other people who provide permanent or occasional service. 2-legal persons are responsible for offences when the facts have been practiced in the exercise of their functions or in your name or on your account, by the holders of their social organs, agents, representatives, employees or any other permanent or occasional collaborators. 3-liability of A legal person does not preclude the individual responsibility of the respective agents. 4-without prejudice to the individual responsibility of the agents the legal type of infringement requiring certain personal elements and these only occur in the legal person, or require that the agent practice in your interest, having that acted in the interest of others 31. 5-the invalidity and the ineffectiveness of legal acts in which merges the relationship between the individual agent and the legal person shall not preclude the application of the preceding paragraphs.
Article 47 Negligence negligence is always punishable, being, in this case, reduced to half the maximum and minimum limits of the fine.
Article 48 fulfilment of omitted obligations 1-where the alleged infringement resulting from the omission of a duty, the application of the penalty and the payment of the fine does not exempt the offender from your compliance with, if this is still possible. 2-the offender may be subject to injunctive relief of duty omitted.
Article 49 1 Prescription-the procedure concerning administrative offences provided for in this chapter shall become statute-barred within five years from the date of your practice. 2-the fines and penalties prescribed within five years from the day on which the administrative decision becomes final or the day on which the judgment is made absolute.
Article 50 destination of fines regardless of the stage at which has become final or the judgment we pass judgment, the product of the fines reverts in 60% in favour of the State and in 40%: 32 a) of the deposit guarantee fund established under article 154 of the general scheme of credit institutions and financial corporations, approved by Decree-Law No. 298/92 , December 31, in the case of fines applied to financial entities in proceedings in which the decision-making competence fits to the Bank of Portugal; b) system of Compensation to investors, created by Decree-Law No. 222/99, of 22 June, in the case of fines imposed in proceedings in which the decision-making competence fits to the securities market Commission; c) Portugal tourism, i. p., in the case of fines imposed in proceedings in which the decision-making competence fits to the Inspection Service of tourism of Portugal Games I. P.; (d)) of the authority responsible for the procedure in other cases.
Article 51 liability for the payment of fines 1-legal persons respond jointly and severally liable for the payment of fines and costs where they are convicted its leaders, agents, representatives or employees for the offences punishable under this law. 2-the holders of management bodies of legal persons that, being able to do it, not opposed to the practice of individual and secondarily by respond offence payment of the fine and costs in that they are doomed, even if the same, at the date of conviction, have been dissolved or gone into liquidation.
Article 52 supplementary law the offences provided for in this chapter is applicable in the general scheme of the contravention.
Illicit ordination a.II merely 33 article 53 social administrative offences Constitute a misdemeanour the following offences: a) the typical obligations of identification and verification of the identity of customers, representatives and beneficial owners, in violation of the provisions of article 7, subparagraph (a)) of paragraph 1 and in paragraph 2 of article 32 and article 33; b) carrying out the procedures for verifying the identity of customers, representatives and beneficial owners with failure to observe the rules contained in paragraphs 1, 2 and 4 of article 8 on the moment in time that they should take place; c) the permission to debit or credit entries in bank deposit accounts, payment instruments available on these accounts or changes in ownership of the same, when not preceded by the verification of the identity of the clients, in violation of the provisions of paragraph 3 of article 8; d) failure to comply with the procedures and measures of care referred to in (a))) of paragraph 1 of article 9; and adequacy) nature and extent of procedures for identity verification and due diligence measures the degree of risk that exists, in violation of the provisions of paragraph 1 of article 10, as well as the absence of such a fitness demonstration before the competent authorities, in violation of the provisions of paragraph 2 of the same article; f) simplified procedures in fulfilling the duties of identification and due diligence, with non-compliance with conditions and terms laid down in articles 11 and 25; g) the omission, in whole or in part, of increased measures of care to clients and operations which could be a higher risk of money laundering or terrorist financing and cross-border bank correspondence relations with institutions established in a third country, in violation of the provisions of articles 12 and 26; h) failure to comply with the duty to refuse execution of operations on bank account of establishment of business relations or of occasional transactions, when they are not provided 34 identification elements or the information referred to in points (a), respectively) and b) of paragraph 1 of article 13; I) not performing the analysis regarding the circumstances which led to the refusal of a transaction, business relationship or transaction and their communication to the financial intelligence unit, in violation of the provisions of paragraph 2 of article 13; j) the absence of conservation of documents, copies, references or other material statements of compliance with durable and diligence and of carrying out operations in accordance with and by the deadlines laid down, respectively, in paragraphs 1 and 2 of article 14; l) failure to comply with the duty to examine with special care and attention the conduct, activities or transactions which may be related to money laundering or the financing of terrorism, in violation of the provisions of paragraph 1 of article 15; m) non-compliance with the registration obligations, file and provision of the results of the examination of conduct, activities or suspicious transactions, in violation of the provisions of paragraph 2 of article 15; n) the lack of instant communication to the FIU of operations likely to set up the practice of the crime of money laundering or financing of terrorism, in violation of the provisions of article 16; the failure to comply with the duty to) refrain from executing suspicious transactions provided for in paragraph 1 of article 17 and the obligations of immediate provision of information to the financial intelligence unit provided for in paragraphs 2 and 4 of that article; p) non-compliance of orders of suspension of execution of suspicious transactions determined pursuant to paragraph 2 of article 17, as well as the execution of such operations after judicial confirmation of the order of suspension provided for in paragraph 3 of that article; q) not provide ready collaboration to the financial intelligence unit, the judicial authority responsible for the direction of the investigation or the authorities responsible for the enforcement of the obligations enshrined in this law in breach of the provisions of article 18; r) revelation, to customers or to third parties, the transmission of communications to the financial intelligence unit or of the 35 criminal investigation pending, in violation of the provisions of paragraph 1 of article 19; s) the dissemination and exchange of information between entities referred to in paragraphs 3 and 4 of article 19 with non-compliance of the purposes, policies and terms there provided for; t) the absence of definition and implementation of internal control policies and procedures, in violation of the provisions of article 21; u) non-adoption of measures and programmes for the dissemination and training on the prevention of money laundering and terrorist financing, in violation of articles 22 and 37; v) the opening of accounts or anonymous passbooks, in violation of the provisions of paragraph 2 of article 23; x) the use of execution of duties of due diligence and identification by third parties, with non-compliance with conditions and terms laid down in article 24; z) the absence of communication to the FIU of operations that reveal special risk of money laundering or terrorist financing and whose reporting obligation has been determined by the sectoral supervisory authority, in violation of article 27; AA) the lack of systems and instruments that allow financial authorities to respond promptly and fully to requests for information made by the financial intelligence unit or by the judicial authorities, in violation of the provisions of article 28; BB) the non-compliance with the obligations of preventive measures, equivalents of internal policies and procedures, reporting to supervisory authorities or supervisory bodies and of additional preventive measures, within the framework of the activity of branches and subsidiaries in a third country, in violation of the provisions of article 29; CC) the establishment or maintenance of relationships with shell banks or credit institutions with this relate, in violation of the provisions of article 30; DD) the issuance of cheques to Casino goers order with non-compliance with conditions and terms laid down in paragraph 1 (b)) and c) of paragraph 1 and paragraph 3 of article 32; EE) non-compliance with the reporting obligations imposed on entities with real estate activities, in violation of the provisions of article 34; 36 ff) the failure to comply with the injunction issued pursuant to paragraph 2 of article 48; Gg) violation of rules in the sectoral regulatory instruments issued pursuant to this law, in the exercise of jurisdiction provided for in point (a)) of paragraph 1 of article 39 article 54 Penalties The administrative offences provided for in the preceding article are punishable as follows: a) When the offence is committed within the framework of the activities of a financial institution: i) With fine of € 25 000 to € 2 500,000 If the agent is a legal person; II) With fine of € 12 500 1 250 000 €, if the agent is a natural person. b) When the offence is committed within the framework of the activity of a non-financial entity, with the exception of those for solicitors and barristers: i) With fine of € 5 000 to 500 000 euro, if the agent is a legal person; II) With fine of € 2 500 to 250 000 €, if the agent is a natural person.
Article 55 penalties Together with fines, can be applied to the offences provided for by any responsible in article 53 the following penalties depending on the gravity of the infringement and of the agent's fault: a) Ban, for a period up to three years, the practice of the profession or activity the respect a misdemeanour; b) Inhibition, for a period up to three years, the social positions and exercise administration functions, direction, leadership and supervision on legal persons subject to this law, when the offender is a member of the governing bodies, carries out management positions, leadership or management or acting on legal representation or volunteer of the legal person; c) publication of the definitive punishment at the expense of the infringer, in a newspaper of wide dissemination in 37 of the seat or of the permanent establishment of the offender or, if this is a natural person, at the location of your residence.
Section III procedural provisions article 56 competence of administrative authorities-1 in respect of breaches committed by financial institutions, the investigation of offences, the procedural statement and the application of fines and penalties are a matter for the Bank of Portugal, the securities market Commission or of the Instituto de Seguros de Portugal, according to the financial sector in which the infringement has been committed and the Ministry of finance and public administration as the Institute of Management of Treasury and Public credit, I. P. 2-concerning administrative offences practiced by non-financial entities, without prejudice to the provisions of the following paragraph, shall be responsible for the investigation of offences, the procedural statement and the application of fines and penalties the supervisory entities and professional regulatory bodies, referred to in (a)) and article 38), under and in accordance with its mission. 3-in the case of proceedings in which the investigation and the instruction fit the Food and economic Safety Authority, the competence for the application of fines and penalties the Commission's imposition of fines economic and advertising laid down in Decree-Law No. 208/2006 of 27 October.
Article 57 1-jurisdiction the Court with jurisdiction for the judicial review, revision or execution of any judgment in the administrative offense by a supervisory authority of financial institutions is the Small Criminal Court of Instance. 2-In case of application of decisions referred to in paragraph 1:00 pm processes of ordering that accused a non-financial entity, the competent court is the District of Lisbon 38 or the area of the area of the seat or residence of that entity, to choose this.
Chapter VI article 58 Disciplinary Offences Offences committed by lawyers-1 the offence by any lawyer of the duties to which belongs in accordance with this law shall open a disciplinary procedure by the Bar Association in general terms, according to the statutes of the Bar Association. 2-disciplinary penalties applicable are: a) Fine between € 2500 and € 250 000; b) suspension until 2 years; c) suspension for more than 10 years and up 2; d) Expulsion. 3-in the application of penalties and on its extent and degree must take into account the seriousness of the breach of duties which fit the lawyers under this law, taking as a reference the criteria set out in article 126 of the Statute of the Bar Association.
Article 59 Offences charged by solicitors 1-the infringement by any solicitor of the duties to which belongs in accordance with this law shall open a disciplinary procedure by the Chamber of bailiffs in general terms laid down by the Statute of the Chamber of bailiffs. 2-disciplinary penalties applicable are: a) Fine between € 2500 and € 250 000; b) suspension until 2 years; c) suspension for more than 10 years and up 2; d) Expulsion. 3-in the application of penalties and on its extent and degree must meet to 39 gravity of the violation of the duties that fit solicitors pursuant to this law, taking as a reference the criteria set out in article 145 of the Statute of the Chamber of bailiffs.
Chapter VII final provisions article 60 amendment of law No. 52/2003, of 22 August articles 2, 4, and 8 of the law No. 52/2003, of 22 August, as amended by Act No. 59/2007, of 4 September, are replaced by the following: ' article 2 1 terrorist organizations-[...]. 2-Who promote or founding group, organization or terrorist association, they join or support them, in particular by providing information or material means, shall be punished with a prison term of 8 to 15 years. 3 - […]. 4 - […]. 5 - […].
Article 4 1-Terrorism [...]. 2-Who practice the crime of grand larceny, robbery, extortion, swindling and communication Informatics, Informatics, falsehood or falsification of administrative document with a view to the Commission of the facts referred to in paragraph 1 of article 2 is punishable by the penalty corresponding to the crime practiced, aggravated one third in its minimum and maximum limits. 40 3-[...].
Article 8 Application in space 1-[...]:) [...]; b) When constituting the crimes provided for in articles 3, 5 and 5A, since the agent is found in Portugal and cannot be extradited or handed over in execution of the European arrest warrant. 2 - […].»
Article 61 Amendment to law No. 52/2003, of 22 August is added to law No. 52/2003, of 22 August, as amended by Act No. 59/2007, of 4 September, article 5 with the following text:% quot% Article 5a financing of terrorism 1-Who, by any means, directly or indirectly, provide, gather or holds funds or goods of any kind as well as products or rights likely to be transformed into funds, intended to be used or knowing that they can be used, in full or in part, in the planning, preparation or perpetration of facts as referred to in paragraph 1 of article 2, or practice these facts with the intention referred to in paragraph 1 of article 3 or in paragraph 1 of article 4 , is punished with imprisonment of 8 to 15 years. 2-For an act constitutes the offence provided for in the preceding paragraph, it is not necessary that the funds come from third parties, or that have been delivered for whom they are intended, or that have been actually used to commit the facts set out. 41 3-the penalty is specially mitigated punishment takes place or not, if the agent voluntarily abandon your activity away or decrease considerably the danger he caused or assist in the gathering of evidence decisive for identifying or catching other responsible. '
Article 62 delegation of powers of the Attorney General of the Republic, the Prosecutor-General may delegate to another magistrate, the powers conferred on it by this law.
Article 63 information to the European Commission and the Member States the Minister responsible for Finance shall be the competent authority to transmit and receive information concerning third countries, provided for in paragraph 4 of article 11, paragraph 7 of article 28 and paragraph 2 of article 31 of Directive 2005/60 No./CE, of the European Parliament and of the Council of 26 October 2005.
Article 64 1-set Standard is revoked the law No. 11/2004, of March 27. 2-All references by other diplomas to the repealed regulations shall be deemed made henceforth to this law.
Seen and approved by the Council of Ministers of 22 November 2007 Prime Minister the Minister of Parliamentary Affairs Minister Presidency
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