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

A leniency program was introduced in Portuguese law by Act No 39/2006 of 25 August 2006. Act No 39/2006 was repealed and specific provisions relating to leniency were included in the general Competition Act (Sections 75-82). Eventually, the Competition Authority adopted a new regulation on leniency applications published on 3 January 2013 (Regulation No 1/2013) with a summary application form. The …

Leniency

Section 29(4) provides that a decision finding an infringement to the Act may be accompanied by the imposition of behavioral or structural measures necessary for putting an end to the prohibited practices or their effects. However, structural measures may only be imposed when there is no equally effective or less onerous behavioral measure.

Cease and desist orders

Without prejudice to criminal liability or administrative measures that may be taken (Section 67), fines can be imposed for violation of the Act (Section 68).

Conduct restricting competition is punishable by a fine of up to 10% of the turnover in the previous financial year. Other breaches such as obstructing an investigation or providing false information during an investigation may, pursuant to Section 69(3), be punished by a fine of up to 1% of the turnover in the prior financial year.

Under Section 69, the amount of a fine is determined with reference to:

- the seriousness of the infringement in terms of its effect on competition in the domestic market;

- the nature and size of the market affected;

- the degree of involvement in the infringement;

- the profits made by the infringing undertakings due to the infringement;

- the infringing party's efforts to eliminate the prohibited practice and compensate for the damage caused to competition;

- the economic situation of the infringing party;

- the occasional or regular nature of the infringement;

- the cooperation with the Competition Authority during the antitrust proceedings.

On 20 December 2012, the Competition Authority published Guidelines on the Methodology for setting fines under Section 69, largely inspired by the Commission's Guidelines of 2006 (2006/C 210/02).

The fine can be imposed on the undertaking and/or natural persons. Act 19/2012 has broadened the scope of the persons liable for competition infringements. While previously, only those who held a leading position in the corporate bodies and the representatives of the legal person were punishable, the 2012 Act holds liable the members of the board of directors of the legal person or equivalent entity, as well as those responsible for the management or supervision of the areas of activity where there has been an administrative offense, when being aware or having the duty of being aware that an infringement has been committed, they have not adopted any appropriate measures to terminate it (Section 73(6)).

Since the 2022 amendment, the calculation of fines is now based on the worldwide annual turnover of an undertaking (and not just based on national turnover).

Fines

A leniency program was introduced in Portuguese law by Act No 39/2006 of 25 August 2006. Act No 39/2006 was repealed and specific provisions relating to leniency were included in the general Competition Act (Sections 75-82). Eventually, the Competition Authority adopted a new regulation on leniency applications published on 3 January 2013 (Regulation No 1/2013) with a summary application form. The new Act explicitly restricts the scope of leniency to cartels. Both undertakings and members of their boards as well as those responsible for the executive management or supervision of areas of activity where an administrative offense has occurred can apply for leniency (Section 76).

  Pursuant to Section 77, immunity from fines may be granted to the first undertaking which discloses its participation in an alleged agreement or concerted practice and supplies information and evidence which, in the view of the Competition Authority, provide a substantive reason for a request to carry out search and seizure, at a time when the Competition Authority does not have enough information to warrant the request; or allows it to detect a cartel for which the Competition Authority does not have enough evidence. The applicant must also meet, cumulatively, the following conditions: a) fully and continuously cooperating with the Authority from the moment it applied for leniency by: i) supplying any element of proof he holds or may hold, ii) answering diligently any claim for information that can contribute to the establishment of the facts, iii) refraining from any act that could jeopardize the course of proceedings and iv) not informing the other participants of its application for leniency; b) putting an end to its participation in the infringement and c) not having put any pressure on the other undertakings in order to force them to participate in the infringement.

  Pursuant to Section 78 a reduction of the amount of the fine, of 30-50%, can be granted to the first undertaking which complies with the conditions set in Section 77(2)(a) and (b) and (3) to provide significant added value information when an investigation has already been opened. A reduction of the fine of 20-30% is awarded to the second undertaking to provide information of significant added value and a reduction of up to 20% is granted to the subsequent undertakings.

Additionnaly, on 16 September 2022, the Authority issued a new whistleblower tool through which any person or company may report an anticompetitve practice detected during their professional activity. This tool is available directly on the ADLC's website and it's completely anonymous in order to guarantee protection. 

Global Competition Law

584. Leniency

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Les notions juridiques connexes

584. Leniency

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