Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The 19/2012 Act brought Portuguese competition law in line with EU law as regards two procedural opportunities offered to the investigated undertakings before the proceedings are formally initiated. Firstly, pursuant to Section 23, the Competition Authority may accept commitments submitted by an undertaking where they are likely to eliminate the effects on competition stemming from the practices a …

Proceedings before the Competition Authority

The decision to open an investigation lies exclusively with the Competition Authority (Section 17(1)), which can be informed of a violation of the Act by any means. However, Section 7 of the new Competition Act expressly empowers the Competition Authority to define priorities in the handling of matters that it is called on to analyze. For this purpose, the Competition Authority will take into account in particular priorities in competition policy and the elements of fact and of law brought by the parties to the file, as well as the seriousness of the alleged infringement, the likelihood of being able to prove its existence and the extent of investigation required to fulfill its mission as properly as possible.

The procedure before the Authority is administrative in nature and thus follows the rules set out in the General Regime of Administrative Offences (Section 13). In addition, in March 2013 the Competition Authority published its Guidelines on the handling of antitrust proceedings which take account of the amendments brought to Portuguese competition law in 2012 and aim at ensuring greater transparency and predictability, facilitating cooperation with the parties involved and, consequently, increasing efficiency in the analysis and monitoring of anticompetitive practices.

The Competition Authority's investigation powers include:

- questioning persons at the undertaking and other persons involved in the case, either personally or through their legal representatives, and requesting documents and other information useful or necessary for determining the facts;

- interviewing any other persons, either personally or through their legal representatives, where their statements might be relevant, and requesting documents and other information;

- carrying out searches, examinations, collecting and seizing accounting data or other documentation, irrespective of the devices where they are stored or saved, in the premises, property and means of transport of the undertakings concerned (with a warrant from the competent judicial authorities);

- sealing off the premises of undertakings or associations of undertakings where there are, or may be, accounting data or other documentation, including the devices where they are stored or saved, such as computers and other data storage electronic equipment, during the period and to the extent that is strictly necessary for carrying out the actions detailed in the previous subparagraph (also with a warrant);

- requesting assistance from any service that is part of the Public Administration, including the police, as necessary for the fulfillment of its functions (Section 18).

Act No 19/2012 also allows the Authority to search private premises under authorization by the judge responsible for procedural safeguards, where there is a well-substantiated indication that evidence of a serious infringement of Sections 9 or 11 of the Act may be found at the private homes of partners, members of the board of directors, employees or anyone who works with the undertaking or association of undertakings. Where searches are conducted in the offices of lawyers or doctors, the judge must be present and he/she must also inform the president of the local section of the Bar Association or of the Doctors' Association, so that a representative may assist, otherwise nullity of the operations is incurred.

Complaints and investigations

The 19/2012 Act brought Portuguese competition law in line with EU law as regards two procedural opportunities offered to the investigated undertakings before the proceedings are formally initiated. Firstly, pursuant to Section 23, the Competition Authority may accept commitments submitted by an undertaking where they are likely to eliminate the effects on competition stemming from the practices at issue and terminate the investigation following the imposition of conditions guaranteeing that the proposed commitments are met. Such arrangement, however, is not tantamount to the recognition that an infringement to the provision of the Act has been committed (Section 23(6)). Secondly, pursuant to Section 22, a settlement between the Competition Authority and the investigated undertakings may be reached during the investigation phase. This implies that the undertakings accept responsibility for the infringement at issue and forego the right to make an appeal for judicial review of the facts. Under those conditions, the undertakings may be granted a fine reduction. Such settlement may also occur later on, during the prosecution phase, i.e. after the notification of the Statement of Objections (Section 27).

Where no such arrangement is entered into, Section 24 provides that at the end of its preliminary investigation, which duration should not exceed a period of 18 months, the Competition Authority may either:

- close the case on the grounds that there is no sufficient evidence of a violation of the Act; or

- where, on the basis of the investigation undertaken, there exists a reasonable likelihood of a decision imposing a sanction, initiate prosecution proceedings, with a notification to the party concerned of the Statement of Objections.

In the notification of the Statement of Objections, the Competition Authority shall set a reasonable time-limit of not less than 20 working days for the party concerned, to respond in writing. In its written submission, the undertaking may request an oral hearing to complement the written reply (Section 25). Pursuant to Section 26 of the Act, the hearing held by the Competition Authority allows the applicant to make all due clarification, and to add documentation to the file.

Prosecution proceedings shall be concluded, whenever possible, within a 12-month period from the notification of the Statement of Objections (Section 29(1)), by a final decision either:

- declaring that there has been a prohibited practice and imposing fines or any appropriate behavioral or structural measure or considering such a practice justified pursuant to Section 10;

- imposing a sanction in the context of a settlement decision pursuant to Section 27;

- ordering the case to be closed with the imposition of conditions under the provisions of Section 28;

- ordering the case to be closed without the imposition of any conditions.

In December 2023, the Competition Authority (ADLC) issued guidelines on the prosecution of cases concerning the application of Articles 9, 11 and 12 of Law No.19/2012 of May and Articles 101 and 102 of the TFEU. The Guidelines cover the investigation phase, settlements, compromises, publicity and access to proceedings, publication and other general provisions. 

 Under Section 34, where on the basis of the facts collected there is an indication that the practice under examination may cause serious and irreparable harm to competition, the Competition Authority may, at any stage of the proceedings, ex officio or upon request of any interested party, order the immediate suspension of the practice under consideration or order any provisional measure necessary to restore competition or ensure the full effect of the decision to be taken. However, any measures adopted pursuant to Section 34 may last no longer than 90 days, subject to an extension period.

Interim relief

Damages actions for competition law infringements may be brought before the Court of Competition, Regulation and Supervision, under the provisions of Act 23/2018 of 5 June 2018, which transposed EU Directive No 2014/104 of 26 November 2014 into Portuguese law. The Act applies irrespective of the existence of any previous finding of an infringement of competition rules by a competition authority or national court, therefore covering stand alone actions as well as follow on actions (Section 1(2°)). Act 23/2018 provides for the full compension of harm suffered by victims of competition infringements, i.e. including loss of profit and interest (Sections 3 and 4). The joint liability of multiple infringers is introduced, with special provisions for SMEs and leniency recipients (Section 5). Actions must be lodged within five years from the knowledge of the facts (Section 6). Irrebutable proof of the infringement may result from a final decision of the Competition Authority or the Court of Competition. The same decision by a national competition authority of another Member State constitute rebuttable proof of said infringement (Section 7). As Directive No 2014/104, Section 8 of the Act enshrines the passing on defense (Section 8), and improves the conditions of access to proof for claimants, with the exception of the contents of leniency applications and settlement statements.

Global Competition Law

579. Proceedings before the Competition Authority

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Les notions juridiques connexes

579. Proceedings before the Competition Authority

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise