Businesses in many sectors are subject to inspection by the Food and Economic Safety Authority (Autoridade de Segurança Alimentar e Económica, ASAE) and the Tax and Customs Authority (Autoridade Tributária e Aduaneira, AT), whose administrative offence proceedings follow their own regimes, distinct from each other and from the general regime applicable to other areas. This article forms part of the Administrative Offences area of Araújo & Associados.
Economic offences – the ASAE regime
Economic offences – relating to access to or the exercise of economic activities in the food and non-food sectors, including consumer law, general product safety, intellectual property or the pharmaceutical sector – are governed by the Legal Regime for Economic Offences (Regime Jurídico das Contraordenações Económicas, RJCE), approved by Decree-Law No. 9/2021 of 29 January, in force since 28 July 2021. The ASAE is, as a rule, the authority competent to inspect, investigate and decide these proceedings, unless there is a competent sector-specific authority. Administrative offences in the environmental, financial, tax and customs, communications, competition and social security sectors are expressly excluded from the scope of the RJCE and follow their own regimes.
Classification and amounts of ASAE fines
The RJCE classifies economic offences as minor, serious and very serious, and the minimum and maximum limits of the applicable fine are also determined by the size of the offending company – micro, small, medium or large. The amounts provided for in the regime range from 150 euros, as the minimum fine for an individual in a minor offence, to 90,000 euros, as the maximum fine for a large company in a very serious offence. In serious and very serious offences, the minimum and maximum limits of the fine are doubled where the offence has caused harm to the health or safety of persons or property, or where the offender has obtained from the offence a calculable economic benefit exceeding the maximum limit of the fine.
Voluntary payment and mitigation of the fine in ASAE proceedings
The RJCE provides an incentive mechanism for voluntary payment of the fine: the defendant may, at any time up to the administrative decision, make voluntary payment, benefiting from a 20% reduction on the minimum amount of the fine provided for the offence, regardless of its classification, and if payment is made within the period granted for submitting a defence – as a rule, 20 days – the defendant also benefits from a halving of the procedural costs. The regime also provides for the possibility of special mitigation of the fine, which halves the applicable minimum and maximum limits, where circumstances exist that significantly reduce the unlawfulness of the act, the offender’s fault, or the need to impose a fine – this mitigation being mandatory where the defendant has made good, as far as possible, the damage caused to private parties and has brought the unlawful conduct to an end.
Tax offences – the Tax Authority regime
Tax offences are governed by the General Regime for Tax Offences (Regime Geral das Infrações Tributárias, RGIT), approved by Law No. 15/2001 of 5 June, which is distinct from the regime applicable to ASAE economic offences. The RGIT classifies tax administrative offences as simple, where the maximum limit of the applicable fine does not exceed 15,000 euros, and serious, where that limit exceeds that amount. The fine is, as a rule, initially set at the minimum limit provided for the offence in question.
Reduction of the tax fine through voluntary regularisation
The RGIT provides for two distinct mechanisms for reducing the amount of the tax fine. Under Article 29, a taxpayer who regularises their tax situation on their own initiative may benefit from payment of the fine at a reduced amount, provided that, in the preceding five years, they have not been convicted, by a final decision, in administrative offence or criminal proceedings for tax offences, and provided that the offence is not punishable by an ancillary sanction and does not constitute a tax crime. Under Article 78(2) of the RGIT, voluntary payment of the fine within 15 days entitles the taxpayer to a reduction of the fine to 75% of the amount set.
ASAE/AT fines and other related matters
As in the other areas of administrative offences, decisions of the ASAE and the AT imposing fines may be challenged in court, under the general rules described in the article Appeal against an administrative offence decision – time limits and challenge procedure.
About Araújo & Associados
Established in 1980, with offices in Porto and Lisbon, Araújo & Associados provides legal advice to businesses in administrative offence proceedings brought by the ASAE and the Tax Authority, in Portuguese, English, French, German and Spanish.
Frequently asked questions about ASAE and Tax Authority fines
My company has received a notification from the ASAE - what should I do?
You should assess, within the period granted for submitting a defence, whether there are viable grounds for defence or whether, on the contrary, voluntary payment of the fine with the 20% reduction provided for in the regime may be advantageous, taking into account the specific circumstances of the case.
What is the difference between an economic offence and a tax offence?
Economic offences, supervised as a rule by the ASAE, are governed by the Legal Regime for Economic Offences and cover matters such as food safety, consumer law or intellectual property. Tax offences, supervised by the Tax Authority, are governed by the General Regime for Tax Offences and follow their own regime, distinct from that of economic offences.
Is it always advantageous to pay an ASAE fine voluntarily?
It depends on the specific circumstances of each case, in particular the strength of the evidence gathered by the ASAE. Voluntary payment grants a 20% reduction on the minimum amount of the fine, but as a rule implies acceptance of the offence, so the decision should be weighed case by case.
Can I reduce a tax fine if I voluntarily regularise my situation with the Tax Authority?
In certain conditions, yes. The RGIT provides for payment of the fine at a reduced amount for those who voluntarily regularise their tax situation, provided the applicable legal requirements are met, in particular the absence of previous convictions in the last five years.
Can the amount of an ASAE fine be halved?
In certain conditions, yes, through the mechanism of special mitigation of the fine, applicable where circumstances exist that significantly reduce the unlawfulness of the act, the offender’s fault, or the need to impose a fine.
Does a small company always pay a lower fine than a large company for the same offence?
As a rule, yes, under the ASAE regime – the minimum and maximum limits of the applicable fine vary according to the size of the offending company, with large companies being subject to higher limits than micro, small or medium-sized companies.
Contact us
For more information on economic or tax administrative offences, or to book a legal consultation, you can contact us through our Porto or Lisbon offices, by telephone, email or via the form on the website. We provide legal advice in Portuguese, English, French, German and Spanish.