National Anti-Corruption Mechanism Guideline 1/2024

On September 24, the National Anti-Corruption Mechanism (“MENAC”) issued Guideline 1/2024 (“Guideline”), aimed at standardizing the applicable perspective regarding the appointment of regulatory compliance officers (“RCO”).

Under article 4.1.a) of the General Regime for the Prevention of Corruption (“RGPC”), approved by Decree-Law 109-E/2021 of December 9, the enforcement of regulatory compliance programs must comply with the guideline issued by MENAC.

Under articles 5.2 and 5.3 of the RGPC, legal persons with head offices in Portugal employing 50 or more employees and branches in Portugal of legal persons with head offices abroad employing 50 or more employees must appoint an RCO at the level of senior manager or equivalent. These will be tasked with ensuring and monitoring the application of the regulatory compliance program. The RCO performs their duties independently, continuously, and with decision-making autonomy. The entities concerned must ensure that the RCO has the internal information, together with the human and technical resources, required to perform their duties properly. If these entities are in a group relationship, a single RCO may be appointed. (See article 5.4 of the RGPC.)

Regarding the appointment of an RCO, the Guideline clarify that a “mid-level manager of the entity” cannot be appointed to this position, as the status required is that of “senior manager or equivalent.” MENAC maintains that mid-level managers would be unable to perform their duties with the independence and decision-making autonomy required for the position of RCO, as their decision-making powers would always be subordinate to the respective senior managers. The Guideline also add that the term “equivalent”, used in article 5 of the RGPC, is not an exception to the senior manager requirement, but an adaptation to the various regimes envisaged in the law.

As regards the concepts of “senior manager” and “mid-level manager,” the Guideline refer to various pieces of legislation regulating the status of managers in the services and bodies of the public administration, the local administration and the administration of the autonomous regions (Madeira and the Azores). Managerial positions are identified as those involved in the direction, management, coordination, and control of the public services and bodies. Managerial positions are classified as senior management posts (such as directors general) and mid-level management posts (such as department managers and division heads), depending on the hierarchical level, competences, and responsibilities with which they are tasked. These can be subdivided into different levels, such as director general and vice director general, both of which are senior management positions. 

For private entities, the Guideline state that the duties of a senior manager must be validated by the respective commercial certificate and by the person who, according to that certificate, has the power to bind the entity.

Lastly, the Guideline clarify that the RCO’s duties do not have to be performed by a single person, but rather can be allocated to a team; however, there must be a specific liaison person—the RCO—for the entity’s employees and for external purposes (i.e., communicating with the competent authorities).