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

Merger control is set out in Sections 36 to 59 of the Act. The 2012 reform brought significant changes in the law, in order to enhance the approximation of Portuguese competition rules with EU standards.
On 16 September 2022, Law 17/2022 of August entered into force, introduces several changes to competition law that affect companies directly.  …

Context

Merger control is set out in Sections 36 to 59 of the Act. The 2012 reform brought significant changes in the law, in order to enhance the approximation of Portuguese competition rules with EU standards.

On 16 September 2022, Law 17/2022 of August entered into force, introduces several changes to competition law that affect companies directly. 

A concentration is deemed to occur where there is a lasting change of control in one or more undertakings as a result of two or more previously independent undertakings merging, or creating a joint venture intended to be an autonomous entity, or where one or more persons already controlling at least one undertaking acquire direct or indirect control of all or part of at least one undertaking (Section 36). These provisions do not apply to the acquisition of shares in order to guarantee or satisfy credits or to special procedures for restructuring an undertaking, or to certain operations made by credit, financial or insurance institutions.

Concept of concentration

The 2012 Competition Act has substantially increased the notification thresholds. Now, prior notification of a concentration to the Competition Authority is mandatory where the concentration either:

- creates or strengthens a share greater than 50% (compared to 30% previously) of the national market for a particular good or service or a substantial part of it; or

- creates or strengthens a share equal to, or greater than, 30% but smaller than 50% of the national market for a particular good or service or a substantial part of it where the individual turnover in Portugal in the previous financial year, by at least two of the undertakings involved in the concentration is greater than EUR 5 million; or

- involves undertakings whose aggregate turnover in Portugal in the previous financial year was more than EUR 100 million, net of directly related taxes, provided that the turnover of at least two of the participating undertakings exceeded EUR 5 million (Section 37).

Thresholds

Pursuant to Section 41 of the Act, the Authority appraises a concentration by taking into account its effects on the structure of competition, in order to preserve effective competition on the national market for the benefit of intermediate and final consumers.

Under the previous Act, concentrations that created or reinforced a dominant position in the national market or a substantial part of it, so as to substantially impede effective competition, were prohibited. Approximating Portuguese law with the latest EU standards, the 2012 Act applies the test adopted in the EU Merger Regulation. Thus the new test is whether the transaction is likely or not to create significant impediments to effective competition in the domestic market or a substantial part of it.

In the course of assessment, the following factors should be taken into account:

a) the structure of the relevant markets and the existence or absence of competition from undertakings in these markets or in separate markets;

b) the position of the undertakings concerned in the relevant markets and their economic and financial power, compared with those of their main competitors;

c) the purchaser's market power and its ability to prevent the reinforcement of situations of economic dependency vis-à-vis the undertaking that results from the concentration;

d) potential competition and the existence, in fact or in law, of barriers to entry into the market;

e) the possibility of choice for suppliers, clients and users;

f ) the access of various undertakings to sources of supply and markets for their goods;

g) the structure of existing distribution networks;

h) developments in the supply and demand of the products and services at issue;

i) the existence of special or exclusive rights conferred by law or stemming from the nature of the products being traded or the services supplied;

j) the control of essential facilities by the undertakings concerned and the possibility of access to these facilities provided for competing undertakings;

k) any technical and economic progress that does not constitute an impediment to competition, provided there are efficiency gains that benefit consumers, stemming directly from the concentration.

Global Competition Law

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Les notions juridiques connexes

588. Context

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Les notions juridiques connexes

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