Notas de Preenchimento (EN)

COMPLETION NOTES

Legal definitions relevant to completing the KYC Form

WHY ARE THESE DEFINITIONS USED?

Portuguese law, in compliance with European directives on the prevention of money laundering, requires the lawyer to be aware of certain circumstances of the client and of persons connected with the client, in particular where they hold sensitive public office. This is not a matter of suspicion towards the client: it is a statutory duty of prevention imposed on all European lawyers, and applies across the board.

The definitions below are taken from Article 2 of Portuguese Law no. 83/2017, of 18 August, and should guide the completion of the attached form.

POLITICALLY EXPOSED PERSON (PEP)

A Politically Exposed Person is a natural person who performs, or has performed within the last twelve months, in any country or jurisdiction, any of the following prominent public functions:

Heads of State, heads of government and members of government, including ministers, secretaries and under-secretaries of State or equivalents;
Members of parliament or of other parliamentary chambers;
Members of the Constitutional Court, of the Supreme Court of Justice, of the Supreme Administrative Court and of the Court of Auditors, as well as members of supreme, constitutional, audit and other high-level judicial bodies of other States or of international organisations;
Representatives of the Republic and members of the self-government bodies of autonomous regions;
The Ombudsman, Councillors of State and members of the National Data Protection Commission, of the High Council of the Judiciary, of the High Council of Administrative and Tax Courts, of the Public Prosecutor’s Office, of the High Council of the Public Prosecutor’s Office, of the High Council of National Defence, of the Economic and Social Council and of the Regulatory Entity for the Media;
Heads of diplomatic missions and consular posts;
General officers of the Armed Forces and of the National Republican Guard on active duty, as well as Chief Superintendents of the Public Security Police;
Mayors and executive councillors of municipalities;
Members of the administrative and supervisory bodies of central banks, including the European Central Bank;
Members of the administrative and supervisory bodies of public institutes, public foundations, public establishments and independent administrative entities, regardless of the form of their designation;
Members of the administrative and supervisory bodies of public-sector corporate entities, at national, regional or local level;
Members of the executive governing bodies of national or regional political parties;
Directors, deputy directors and members of the board of directors, or persons performing equivalent functions, in international organisations.

CLOSE FAMILY MEMBERS

The following are considered close family members of a Politically Exposed Person:

The spouse or de facto partner of the politically exposed person;
First-degree relatives by blood or affinity, in the direct or collateral line, of the politically exposed person;
De facto partners of the relatives referred to in the preceding paragraph, to the extent that they do not benefit from the status of affinity;
Persons who, in foreign legal systems, hold similar positions.

PERSONS KNOWN TO BE CLOSELY ASSOCIATED

The following are considered persons closely associated with a PEP:

Any natural person known to be a co-owner, with a PEP, of a legal person or of a centre of collective interests without legal personality;
Any natural person who is the owner of share capital or the holder of voting rights in a legal person, or of assets in a centre of collective interests without legal personality, where these are known to have a PEP as beneficial owner;
Any natural person known to have corporate, commercial or professional relationships with a PEP.

HOLDERS OF OTHER POLITICAL OR PUBLIC OFFICE

This category covers natural persons who, while not qualifying as PEPs, perform or have performed within the last twelve months, on national territory, any of the following offices pursuant to Article 4(3) of Portuguese Law no. 4/83, of 2 April:

Public managers;
Holders of the management body of a company in which the State holds a participation, when designated by the State;
Members of the executive bodies of companies belonging to the local public-enterprise sector;
Members of the governing bodies of public institutes;
Members of the independent public entities provided for in the Constitution or in the law;
Holders of first-degree senior management positions and equivalents;
Members of the representative or executive body of a metropolitan area or of other forms of municipal association.

BENEFICIAL OWNER

A beneficial owner is the natural person or persons who, in the last instance, own or control the client, or on whose behalf a given operation or activity is carried out, pursuant to Article 30 of Portuguese Law no. 83/2017. In particular:

The natural person or persons who, in the last instance, directly or indirectly hold ownership or control of a sufficient percentage of the units of participation or securitisation in circulation in a collective investment undertaking;
The natural person or persons who directly or indirectly own or control a sufficient percentage of the shares, voting rights or capital interest in a corporate entity;
The natural person or persons who exercise control by other means over a corporate entity or collective investment undertaking;
The natural person or persons holding senior management positions, where, after all available means have been exhausted and no grounds for suspicion remain, no person has been identified under the preceding paragraphs, or doubts persist as to the identification.

Criteria for assessment

For the purpose of qualifying as beneficial owner, the following is considered:

Indication of direct ownership: the holding, by a natural person, of participations representing more than twenty-five per cent of the share capital, or of the units of participation or securitisation in circulation of the client.
Indication of indirect ownership: the holding of participations representing more than twenty-five per cent of the share capital, or of the units of participation or securitisation in circulation of the client, by a corporate entity under the control of one or more natural persons, or by several corporate entities under the control of the same natural persons.

Any other indicators of control and any other circumstances that may indicate control by other means are also taken into account.

Trusts

In relation to trusts, the following are considered beneficial owners:

The settlor or settlors;
The trustee or trustees;
The protector or protectors, where applicable;
The beneficiaries, or, where not yet determined, the class of persons in whose main interest the trust was set up or operates;
Any other natural person who ultimately controls the trust through direct or indirect ownership or by other means.

Non-corporate legal persons

In non-corporate legal persons — such as foundations — or in centres of collective interests without legal personality of a nature similar to trusts, beneficial owners are the natural persons holding positions equivalent or similar to those referred to in the preceding paragraphs.