In 2012, the Tribunal da Concorrência, Regulação e Supervisão (the “Competition Court” ‒ TCRS) was established in Portugal (Law no 46/2011 of 24 June, Decree-Law no 67/2012 of 30 March, and ministerial order no 84/2012 of 29 March), located in Santarém. The court's area of territorial jurisdiction corresponds to the national territory (Decree-Law no 49/2014 of 27 March).
The creation of the TCRS was a Troika demand, in order to consolidate the competence for the assessment of issues relating to competition law in one court, thus decongesting and reducing the number of pending issues in the Commerce Courts.
In fact, it falls to the TCRS to keep abreast, inter alia, of the issues related to the appeal, review and execution of decisions in administrative infraction proceedings subject to legal challenge from the Portuguese Competition Authority (AdC) as well as AdC decisions issued in administrative procedures referred to in the competition rules, and to judge actions for damages for infringements of the competition law (Article 112 of Law 62/2013 of 26 August).
A decade later, notwithstanding that antitrust litigation in Portugal began in the late 1980s after the first national competition rules entered into force (Decree-Law no 422/1983 of 3 December), antitrust litigation in Portugal is growing rapidly, not only because the AdC has recently strengthened the fight against anti-competitive practices (such as cartels, unilateral conducts or the failure to notify a merger operation subject to prior assessment) by detecting, investigating, and sanctioning those who participate in it, but also because the trucks cartel (condemned by the European Commission) triggered private enforcement in Portugal, with hundreds of actions, the filing of which continues to this day.
Typically, in the TCRS, at present, there are large-scale judgments, particularly complex cases and a large number of participants regarding a wide variety of antitrust matters, such as re-sale price maintenance and price fixing. Several class actions have been filed in recent months, seeking very large damages awards and requesting access to documents in order to determine whether further class actions can be brought on behalf of consumers in Portugal. Furthermore, the representation of Portugal in the Court of Justice of the European Union (CJEU) has increased, in part because of preliminary ruling procedures that are being conducted.
With the transposition of the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the “Directive”) into the Portuguese legal system by Law no 23/2018 of 5 June (the “Law”), claims based on infringements of European Union competition law, as well as those based on purely national infringements with no cross-border effects, will keep increasing.
Another development in Portugal that is relevant to antitrust litigation is that, in some aspects, the Law has gone beyond the Directive.
In fact, the Law applies not only to damages actions, but also to other requests based on infringements of competition law (eg, declarations of nullity of agreements or contractual clauses), according to Articles 1(1) and 2(l) of the Law. Additionally, it applies not only to damages actions for infringements of EU competition law, with or without parallel application of equivalent national rules, but also to damages actions exclusively based on infringements of Portuguese competition law or of equivalent provisions of other EU member states, according to Articles 1(1) and 2(l) of the Law.
Furthermore, in addition to the company that committed the infringement, any party that exercised a dominant influence over the infringer during the infringement is also liable (bearing in mind that there is a presumption of a dominant influence if the influencing entity holds 90% or more of the share capital of the infringing party), according to Article 3 of the Law. Moreover, although the Directive does not contain any provisions regarding collective actions, the Law includes a provision concerning popular actions; Article 19(2) of the Law provides that legitimacy to bring popular actions is given to:
Finally, in addition to attaching an irrefutable presumption of the existence of an infringement to AdC final decisions and those of Portuguese courts, the Law also attaches a refutable presumption to the final decisions of national competition authorities and courts of other EU member states; this is set out in Article 7(1), (2) and (3) of the Law.
The substantive provisions of the Law, including those relating to the burden of proof, are not applicable retroactively, according to Article 24(1) of the Law. On the other hand, the Law's procedural provisions are not applicable to actions brought before its entry into force, pursuant to Article 24(2) of the Law. The Law came into force on 5 August 2018 (Article 25 of the Law).
This means that:
For this reason, in Portugal, the legal basis for a claim for damages for breach of competition law depends on the moment the breach ceased (notwithstanding the fact that the CJEU has already established that substantive provisions of the Directive, such as the ones regarding to limitation period, are applicable to infringements that ceased before 5 August 2018).
The following points arise where the infringement ceased before 5 August 2018.
If the infringement ceased on or after 5 August 2018:
The infringements may consist of mere national infringements, with no cross-border effects (or corresponding legal provisions in other member states), such as agreements restricting competition (Article 9 of the Portuguese Competition Law ‒ PCL), abuse of dominant position (Article 11 of the PCL), abuse of economic dependence (Article 12 of the PCL), and Articles 101 and 102 of the Treaty (Article 483(1) of the Portuguese Civil Code and Article 1(1) and 2(l) of the Law).
The claims may also be related to claims relating to nullifying agreements that restrict competition or to the violation of standstill obligations in merger control (Article 483(1) of the Portuguese Civil Code and Article 1(1) of the Law).
The person who has suffered harm caused by an infringement of competition law is entitled to full compensation, covering both actual loss and loss of profit, with interest, according to Article 562 et seq of the Portuguese Civil Code and Article 4(1) and (2) of the Law.
As mentioned in 1.1 Recent Developments in Antitrust Litigation, a specialist court named the TCRS was established in Portugal in 2012. Additionally, the competent court to hear the appeals against the TCRS decisions is a specific section of the Lisbon Court of Appeal (as provided under Article 67(3) of Law 62/2013 of 26 August) and the last instance of appeal is the Supreme Court of Justice. The judges of all these three instances are not specialist judges in competition, without prejudice to the skills they have gained with experience.
According to Article 112 of Law 62/2013 of 26 August, the TCRS, among other duties, reviews the AdC decisions and holds exclusive jurisdiction to rule on all civil actions solely based on the violation of competition rules; this last part means that the civil courts are competent to decide on claims in which the violation of competition rules is just one of the grounds invoked by the claimant.
If the cases are wrongfully launched with other courts, they will be dismissed on account of lack of jurisdiction, unless the incompetence is declared after the pleadings have ended and the claimant requests, within ten days of the decision becoming res judicata, the referral of the case to the court in which the action should have been brought, since the defendant has not offered justified opposition (Articles 96(a) and 99(1) and (2) of the Civil Procedure Code).
Beyond the provision of Article 16(1) of Council Regulation (EC) No 1/2003 (see 2.1 Legal Basis for a Claim), the declaration by the AdC through a final decision, or by an appeal court through a final decision, of the existence of an infringement of competition law constitutes an irrefutable presumption of the existence, nature and material of the infringement, as well as of the material, subjective, temporal and territorial scope of that offence, according to Article 7(1) of the Law.
In turn, the declaration by a national competition authority of another member state or appeal court of another member state through a final decision of the existence of an infringement of competition law constitutes a refutable presumption of the existence, nature and material of the infringement, as well as of the material, subjective, temporal and territorial scope of that offence, according to Article 7(2) and (3) of the Law.
In addition, if knowing the subject matter of an action depends on the identification of an infringement subject to an investigation by a competition authority, a non-final decision of a competition authority or a decision of a court of appeal which has not yet become final, the court may decide to suspend the proceedings, with reference to Article 7(4) of the Law. Also, according to Article 16(1) of Council Regulation (EC) No 1/2003, the national court may assess whether it is necessary to stay its proceedings.
Finally, the AdC may intervene in damage actions; according to Article 9(3) of the Law, it assists the court at its request in quantifying damages resulting from the infringement of competition law, although the AdC may request the court not to assist it, provided that justification is given.
To initiate a standalone action, the following must be demonstrated by the claimant:
On the other hand, in the case of follow-on actions, because of Article 16(1) of Council Regulation (EC) No 1/2003 and Article 7(1) and (2) of the Law, it is easier for the claimant to demonstrate the existence of an infringement, although it still has to demonstrate the damages it suffered and the causal link between the infringement and the damages invoked.
Additionally, it is presumed that cartel infringements cause harm, although the infringer has the right to rebut this presumption, according to Article 9(1) of the Law.
On the contrary, the defendant must prove facts that hinder, modify or extinguish the effects alleged by the claimant (Article 342(2) of the Portuguese Civil Code), such as the “pass-on” defence (Article 8(1) of the Law). This means that the defendant may argue (and will have to prove) that the damages invoked by the claimant were passed on down the supply chain.
Regarding the standard of proof, in Portugal there is not a specific standard of proof in force. The principle of free assessment of evidence applies, which consists of a conscientious weighting of the probative elements by a judge. However, some means of proof enjoy special evidentiary value (eg, authentic acts, as per Article 371(1) of the Portuguese Civil Code).
Both direct and indirect purchasers may bring claims. The direct purchasers may bring actions on the basis outlined in 2.4 Burden and Standard of Proof). The indirect purchasers have to prove the existence and extent of the overcharge passed on to the claimant (Article 342(1) of the Portuguese Civil Code and Article 8(2) of the Law).
However, in the absence of proof to the contrary, the indirect purchaser is considered to have proved that that the overcharge has been passed on if it shows that:
In the Portuguese courts, proceedings take an average of five years before a final decision is announced.
As covered in 2.3 Decisions of a National Competition Authority, the court may decide to suspend the proceedings according to Article 7(4) of the Law if knowing the subject matter of an action depends on the identification of an infringement subject to:
Also according to Article 16(1) of Council Regulation (EC) No 1/2003, the national court may assess whether it is necessary to stay its proceedings.
The parties may apply for an order to stay proceedings by mutual agreement for periods which do not exceed three months in their entirety, provided that this does not result in the postponement of the final hearing (Article 272(4) of the Civil Procedure Code). The court may also order a stay of proceedings when there is another justified reason to do so (Article 272(1) of the Civil Procedure Code).
In the Portuguese jurisdiction, class/collective actions are available (since 1995), on an opt-out basis, according to Article 19(1) of the Law and Law no 83/95 of 31 August. This means that the claimant, on its own initiative, represents all the rights holders who have not exercised the right of self-exclusion without needing any type of authorisation from them. This is stated in Article 14 of Law no 83/95 of 31 August.
Those actions may be brought on behalf of both direct and indirect purchasers.
Article 19(2) of the Law gives legitimacy to bring popular actions to associations and foundations whose purpose relates to consumers’ defence and to associations of companies whose members have been harmed.
In Portugal, there is no certification process.
On the other hand, a claim will be rejected if the judge considers that it is manifestly unlikely that the request will be granted. according to Article 13 of Law no 83/95 of 31 August.
Finally, the court shall take the initiative in the gathering of evidence (ie, it is not bound by the initiative of the parties), as stated in Article 17 of Law no 83/95 of 31 August.
In Portugal, judges are required to make serious and effective efforts to end a dispute by agreement between the parties.
To date, only one popular action has been concluded, and, curiously, it was settled.
In Portugal, strike-out/summary judgment is not available. As a rule, there is a trial after the extensive taking of evidence.
There are, however, some rare exceptions. For instance, a claim is rejected when the request is manifestly unfounded, if any insuperable dilatory objection occurs (Article 590(1) of the Civil Procedure Code) or, after the pleadings, if the Court considers that can adequately assess the merits of the case without the need for further evidence (Article 595(1)(b) of the Civil Procedure Code).
The court within whose jurisdiction the claimants are situated has international and territorial jurisdiction, according to Article 7(2) of Regulation (EU) no 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Additionally, the law applicable is the law of the country where the damage occurs, pursuant to Article 4(1) of Regulation (EC) no 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (ROME II).
According to Article 6(1) of the Law, the duration of the limitation period is five years, which begins to run when the claimant knows, or can reasonably be expected to know:
The limitation period does not begin to run before the infringement of competition law has ceased, according to Article 6(2) of the Law.
The limitation period is suspended if the AdC starts an investigation of an infringement related to the claim (where the limitation period only begins to run again one year after the final decision) and during out-of-court settlement procedures. This is set out in Article 6(4), (5) and (6) of the Law.
Lastly, the limitation period is interrupted by the summons or judicial notification of the alleged offender of any acts that express the intention to exercise the right, according to Article 6(7) of the Law.
In proceedings relating to an action for damages, upon the request of one party who has presented reasonably available facts and evidence sufficient to support the plausibility of its claim or of its defence, the court is able to order the other party or a third party (including public authorities) to disclose relevant evidence which lies in their control, provided that the facts to be proved are indicated. This is provided for in Article 12(1) and (2) of the Law.
The court orders the presentation of evidence if it considers that it is proportionate and relevant to the decision of the case, and it will refuse requests that presuppose indiscriminate searches for information, according to Article 12(4) of the Law.
According to Article 12(5) of the Law, in determining whether any disclosure requested by a party is proportionate, the court will consider the legitimate interests of all parties and third parties concerned, considering, in particular:
According to Article 12(7) of the Law, the court orders the presentation of evidence containing confidential information when it deems it relevant to the action for damages by adopting effective measures to protect it, namely:
The court does not order the presentation of evidence without the possessor having the opportunity to comment, in accordance with Article 12(9) of the Law. Pre-action disclosure is available, as stated in Article 13 of the Law. The presentation of evidence in the possession of a competition authority may also be requested, according to Article 14 of the Law. The failure to comply with the order of the court may entail the imposition of a fine and may lead to the reversal of the burden of proof, as outlined in Article 18 of the Law.
The court cannot order the disclosure of information covered by professional confidentiality of lawyers under national law or European Union law, as stated in Article 12(8) of the Law.
The court cannot order the presentation of evidence that includes leniency statements and settlement submissions, according to Article 14(5) of the Law.
In Portugal, the court may hear witnesses whose testimonials are subject to the principle of free assessment of evidence, in accordance with Article 396 of the Portuguese Civil Code. All those who have the mental capacity to testify in relation to the facts that constitute the subject of evidence have the capacity to testify as witnesses (Article 495(1) of the Civil Procedure Code).
All persons are required to co-operate in the discovery of the truth. As a result, if appointed, they are compelled to render testimony, under penalty of a fine or an order that the witness appear under custody (Article 508 of the Civil Procedure Code). However, some people may refuse to testify, for example certain family members (Article 497(1) of the Civil Procedure Code) and all those who are bound by professional secrecy (Article 497(2) of the Civil Procedure Code).
As a rule, witnesses testify at the final hearing in person or via teleconference by the judge, or by written statement in exceptional cases (Article 497(2) of the Civil Procedure Code), and they are subject to cross-examination (Article 516 of the Civil Procedure Code). Each party cannot nominate more than ten witnesses (unless the court decides otherwise), as set down in Article 511(1) and (4) of the Portuguese Civil Code.
Providing false testimony is a crime, according to Article 360 of the Portuguese Criminal Code.
Under Portuguese law, expert evidence is allowed; both parties and the judge may request expert evidence, when special knowledge is required and the judges do not have it, as set out in Articles 388 and 467(1) of the Portuguese Civil Code.
Expert evidence can be provided by three experts or by one expert only (Article 468 of the Portuguese Civil Code).
If the expert evidence is provided by a panel of experts, two of them are appointed by the parties (one each) and the last one by parties' agreement or by the judge (Article 468 of the Portuguese Civil Code).
The expert(s) must prepare a written report before the trial takes place, in which agreement or disagreement can be expressed by any of the appointed experts regarding each matter in the report (Article 484 of the Portuguese Civil Code) and their attendance in the final hearing may be required in order to provide explanations or clarifications of the report (Article 484 of the Portuguese Civil Code).
Additionally, the parties may object or request clarifications of the report if it is defective, lacks clarity, is contradictory or lacks sufficient justification (Article 485 of the Portuguese Civil Code) and may request a second expert, although the second expert does not replace the first one (Article 487 of the Portuguese Civil Code).
The report is subject to the principle of free assessment of evidence (Article 389 of the Portuguese Civil Code).
Any person who has suffered harm caused by an infringement of competition law is entitled to full compensation, covering both actual loss and loss of profit, plus interest, counted from the date of the decision until effective and full payment (Article 4 of the Law). In Portugal, there are no exemplary or punitive damages.
Regarding the assessment of damages, it is presumed that cartel infringements cause harm, and the infringer has the right to rebut this presumption (Article 9(1) of the Law).
On the other hand, if it is practically impossible or excessively difficult to calculate the damages, the court makes that calculation using a rough estimate (Article 9(2) of the Law).
The AdC may assist the court, at its request, in quantifying the damages resulting from the infringement of competition law, although the AdC may request the court not to assist it, provided that justification is given (Article 9(3) of the Law).
The passing-on defence is available in Portugal. The defendant can invoke as a defence that the claimant passed on the whole or part of the overcharge resulting from the infringement. The burden of proving overcharge was passed on is on the defendant (Article 8(1) of the Law).
On the other hand, where the overcharge was passed on to the claimant, the burden of proving the existence and scope of such a pass on rests with the claimant (Article 8(2) of the Law).
According to Article 8(3) of the Law, in the absence of proof to the contrary, the indirect purchaser has proved that the overcharge was passed on if it shows that:
See 7.1 Assessment of Damages. As of the time of writing, the interest rate is 4%. However, this is updated from time to time.
Firstly, according to Article 3 of the Law, in addition to the company that committed the infringement, whoever exercised a dominant influence over the infringer during the infringement is also liable (bearing in mind that there is a presumption of a dominant influence if the influencing entity holds 90% or more of the share capital of the infringing party).
Also, undertakings that have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by the infringement (Article 5(1) of the Law), except in the following cases (Article 5(2) of the Law).
These exceptions are not applicable if the SME has led the infringement or has coerced other undertakings to participate therein or if the SME has previously been found to have infringed competition law (Article 5(3) of the Law).
In addition, an immunity recipient is jointly and severally liable only:
An infringer may recover a contribution from any other infringer. The amount is determined in light of their relative responsibility for the harm caused by the infringement, which is presumed to be equivalent to the average of their market shares in the markets affected by the infringement (Article 5(5) of the Law).
To the extent that the infringement caused harm to injured parties other than the direct or indirect purchasers or providers of the infringers, the amount of any contribution from an immunity recipient to other infringers is determined in light of its relative responsibility for that harm (Article 5(7) of the Law).
In Portugal, injunctive relief is available if the following conditions are met:
The injunctive relief may be filed while the main proceedings are ongoing or the main action must be filed within 30 days of the outcome of the successful application being notified to the respondent (Article 373(1)(a) of the Civil Procedure Code).
However, the court may release the applicant from commencing a claim if it is convinced of the existence of the underlying substantive right and the injunctive relief is able to regulate the litigation with certainty (Article 369(1) of the Civil Procedure Code).
The injunctive relief may be obtained without notice to the other parties (Article 366 of the Civil Procedure Code).
The respondent’s interests are safeguarded by its right to seek compensatory damages where an injunctive relief was granted (Article 374(1) of the Civil Procedure Code). Additionally, whenever it deems it convenient in view of the circumstances, the court may, even without hearing the applicant, make the grant dependent on the provision of adequate security by the applicant (Article 374(2) of the Civil Procedure Code).
Injunctive relief is an urgent proceeding that should be decided on within few weeks.
In Portugal, the parties may resolve an action through alternative dispute resolution procedures such as arbitration. The methods of alternative dispute resolution are not mandated.
In Portugal, there is no regulation on litigation funding and nothing prevents it; a third party unrelated to the dispute (a litigation funder) may bear the costs associated with an action, mainly in light of the principle of contractual freedom.
In fact, in Portugal, there are several actions (namely, class actions) financed through this mechanism.
The parties are required to pay the respective court fees with the submission of the statement of the case and the statement of defence.
In its final decision, the court will impose the costs on the losing party (Article 527 of the Civil Procedure Code).
According to Articles 25 and 26 of Regulamento das Custas Processuais, the losing party has to reimburse the winning party for the costs the latter incurred in the action, but this compensation is limited by law. Therefore, it consists of:
The court may also award costs incurred through lawyers’ fees without limitation, if it rules that a party acted with procedural bad faith (Article 543 of the Civil Procedure Code).
In addition, in class actions, the claimant is exempt from the payment of costs if the pleading is partially granted (Article 20(2) of Law no 83/95 of 31 August).
In Portugal, there are two levels of ordinary appeals against the rulings of the TCRS: firstly, to the Lisbon Court of Appeal and, finally, to the Supreme Court of Justice.
However, the parties, provided some conditions are fulfilled, may request that the appeal against a ruling of the TCRS be heard directly by the Supreme Court of Justice (Article 678 of the Civil Procedure Code).
To appeal to the Lisbon Court of Appeal, which decides on matters of fact and law, the value of the claim must be higher than EUR5,000 and the decision of the TCRS must be unfavourable to the appealing party in an amount more than half of EUR5,000 (Article 629 of the Civil Procedure Code).
To appeal to the Supreme Court of Justice, which decides on matters of law only, the value of the claim must be higher than EUR30,000 and the decision of the TCRS must be unfavourable to the appealing party in an amount more than half of EUR30,000 (Article 629 the of Civil Procedure Code).
In fact, it is not allowed to submit an appeal to the Supreme Court of Justice if the Lisbon Court of Appeal confirms the TCRS decision without any dissenting vote and without essentially different reasoning (Article 671(3) of the Civil Procedure Code).
There are also extraordinary appeals, where an appeal is filed after the decision becomes res judicata (Article 627 of the Civil Procedure Code).