Public enforcement actions regarding cartels are primarily ruled by the Portuguese Competition Act (Law 19/2012, of 8 May 2012, the “Competition Act”, last amended by Law 17/2022, of 17 August 2022), particularly by Article 9.

Vital provisions and further guidance are also set forth in regulations and guidelines adopted by the Portuguese Competition Authority (PCA) and in the PCA’s statutes (Decree-Law 125/2014, of 18 August 2014).

Articles 75 to 82 of the Competition Act also include the legal framework of the Portuguese Leniency Programme (applicable to infringements of Article 9 of the Competition Act and Article 101 of the Treaty on the Functioning of the European Union, or the TFEU). 

Regulation (EU) No 1/2013 on “The procedures relating to obtaining immunity from a fine, or the reduction of a fine, under the provisions of Law 19/2012” details the procedure relating to an application for immunity under the Leniency Programme. In addition, the PCA has issued an Explanatory Notice, the “Notice regarding immunity from a fine or the reduction of a fine in administrative procedures to establish infringement of competition rules”, which sets out the way the PCA applies the Leniency Programme in administrative proceedings. 

The PCA also published guidelines on the handling of antitrust proceedings in March 2013, specifically regarding the enforcement of Articles 9, 11 and 12 of the Competition Act and Articles 101 and 102 of the TFEU, in addition to guidance on the related procedure.

Since cartel infringements qualify as administrative offences (contraordenações or misdemeanours), enforcement is complemented on a subsidiary basis by the Misdemeanours Regime (Decree-Law 433/82, of 27 October 1982).

The judicial review of the PCA’s cartel enforcement decisions is also governed by the decree-law referred to in the previous paragraph and on a subsidiary basis by the Code of Criminal Procedure (Decree-Law 78/87, of 17 February 1987).

Law 23/2018, of 5 June 2018 – which transposed Directive 2014/104/EU, of 26 November 2014, into the Portuguese legal framework – provides for the liability regime for damages due to infringements of the competition law, set forth in Articles 9, 11 and 12 of the Competition Act, and Articles 101 and 102 of the TFEU.

Finally, Law 93/2021, of 20 December 2021 – which transposed Directive 2019/1937/EU, of 23 October 2019 – provides a set of obligations for companies and public entities regarding the protection of whistle-blowers and the creation and implementation of internal channels for the reporting of breaches of EU law.

Competition law is enforced by the PCA, created by Decree-Law 10/2003, of 18 January 2003. The PCA is a public entity with the nature of an independent administrative body, having sanctioning, supervisory and regulatory powers that are established in Decree-Law 125/2014 and further developed in the Competition Act. 

The investigation of cartels is designated to a dedicated unit, within the PCA, called the “Anti-cartel Unit”, which was created to address the need for reinforcement of the PCA’s effectiveness in terms of cartel detection and investigation.

Article 9 of the Competition Act prohibits and sanctions anti-competitive agreements, practices and decisions by associations of undertakings in similar terms to Article 101(1) of the TFEU. As in other infringements of competition law, cartel activity is considered an administrative offence and not a criminal offence. 

Consequently, the imposition of fines is the main form of sanction. In 2024 the PCA imposed a total amount of circa EUR70 million in fines. Other penalties may include ancillary sanctions, such as a periodic penalty payment and the public announcement of condemnatory decisions (reputational damage). The PCA may also impose behavioural or structural measures to end the prohibited practices or their effects.

Among these sanctioning decisions, the most significant penalties were levied against a technology consulting firm for imposing sales restrictions with the aim of limiting distribution and sharing the market for the type of product and the services associated with the firm and against five companies for engaging in a cartel related to public procurement for teleradiology services to hospitals and hospital centres across Portugal.

Additionally, the PCA has also sanctioned a supplier of food supplements and health food products for setting and imposing retail prices (PVP) on distributors, and a corporate group for an abuse of a dominant position in the form of tying, capable of restricting competition and innovation in the payment services sector.

Regarding international activity, the PCA has continued to be an active member in various international forums, namely actively collaborating with European competition authorities such as the CNMC, as well as the newly established competition authorities in Portuguese-speaking countries.

In 2023, the PCA achieved, for the first time, a 4-star rating (“Very Good”) in the Rating Enforcement of the Global Competition Review.

As set forth in Law 23/2018, any person, natural or legal, damaged by an infringement of competition law can file a claim with the Portuguese courts for compensation, invoking the causal link between said conduct and the damages suffered. 

These types of claims can be brought to court individually or as class actions. In the case of individual claims, it is admissible under the Portuguese Civil Procedure Code (Decree-Law 41/2013, of 26 June 2013) to have third parties joining as co-parties, on an “opt-in” basis. As for collective claims, an “opt-out” system applies.

The Portuguese class action market has grown significantly, attracting foreign funders, and this trend is expected to continue as new cases are filed and key rulings are handed down.

In fact, several material complex cases involving significant claims have emerged in the Portuguese market, often involving new entrants working alongside international claimants and law firms.

The interaction between public enforcement and private follow-on and/or standalone litigation will continue to be an area of significant legal development and attention, with broader implications for legal strategy, disclosure and risk assessment.

The Competition Act, in line with the TFEU, contains a general prohibition on agreements between undertakings (seen as economic units), concerted practices and decisions by associations of undertakings (anti-competitive co-ordination) that have the object or effect of significantly preventing, distorting or restricting competition in the domestic market or part thereof. For example, the Competition Act identifies as forbidden any agreements that are aimed at:

• directly or indirectly fixing purchase or sales prices or any other trading conditions; 
• limiting or controlling production, markets, technological development or investment; 
• sharing markets or sources of supply; 
• applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
• making their execution contingent upon the acceptance by the other parties of additional obligations that, by their nature or according to commercial practice, have no connection with their subject matter.

Typically excluded from this prohibition are, inter alia, the following:

• agreements that may be considered justified, should they contribute to improving production or distribution of goods or services, or to promoting technical or economic progress, given that they: 
1. allow the users of these goods or services an equitable part of the resulting benefit; 
2. do not impose on the undertakings concerned any restrictions that are not indispensable to the attainment of these objectives; and
3. do not afford such undertakings the possibility of eliminating competition from a substantial part of the market for the goods or services at issue; 
• collective agreements between employers and workers, in matters strictly related to labour matters, work conditions, etc;
• genuine agency agreements, where the economic risk lies with the principal; and
• agreements that do not significantly (or appreciably) restrict competition (de minimis).

The limitation period for the procedure of cartel infringements is five years, starting from the end of the infringement (the limitation period for continued infringements starts only when the infringement ends).

The time limit for the enforcement of the sanction imposed on cartel infringements is also five years, from the date of the final decision.

Both limitation periods are subject to suspensions and interruptions, but the Competition Act establishes the maximum limitation period for the procedure (including interruptions) as seven-and-a-half years, plus a maximum suspension period of three years. Notwithstanding this, the new amendment saw the introduction of a rule according to which infringement proceedings will be suspended for the period during which the decision of the PCA is subject to judicial appeal, without setting a maximum limitation period.

The scope of the Competition Act covers all economic activities in the private, public and co-operative sector, whether permanent or occasional, so there is no specific exemption for any sector or industry.

Nonetheless, companies that are legally in charge of a service of general economic interest, or that benefit from a legal monopoly, are subject to the provisions of the Competition Act, but only to the extent that they are not impeded, in law or in fact, in the fulfilment of their specific mission.

The Competition Act applies to prohibited practices that have occurred in Portuguese territory and which have had, or may have, an effect in the Portuguese territory (effects doctrine), without prejudice to the international obligations of the Portuguese state.

In this sense, if cartel conduct in a foreign state influences competition in Portugal, it could be subject to the Portuguese Competition Act. Furthermore, when trade between member states is at stake, both national competition authorities or national courts and the European Commission (EC) are competent to enforce Article 101 of the TFEU.

The implementation of the ECN+ Directive into Portuguese law has brought new provisions for the purposes of co-operation between national competition authorities, including endowing the PCA with powers to investigate and gather evidence, as well as powers for the enforcement of decisions to impose fines or periodic penalty payments, subject to Portuguese law and in Portuguese territory, in the name and on behalf of other national competition authorities. Likewise, the PCA is able to request other competition authorities to execute such tasks in the name of the PCA in their respective jurisdictions. 

As a member state competition authority, the PCA is entitled to ensure compliance with Article 101 of the TFEU when the geographic scope of the alleged cartel goes beyond the frontiers of Portuguese territory and affects trade between member states.

In this case, the Competition Act provides that when the PCA learns that a competition authority in another member state has initiated proceedings relating to the same facts pursuant to the same articles of the TFEU, the period of limitation of the infringement is suspended until the PCA has been informed of the decision handed down in the other case. The party concerned must be notified by the PCA of the decision to suspend the case, as established in Article 13 of Regulation (EC) 1/2003 of 16 December 2002.

Bid rigging has been the predominant form of cartel conduct under investigation, particularly in public procurement cases involving sectors such as construction, IT, and healthcare. A notable example occurred in July 2022, when the PCA fined several security service companies approximately EUR42 million for colluding in public procurement processes. Bid rigging is considered a serious infringement due to its impact on public procurement and market competition. While price-fixing cases do occur, they are less frequent in published decisions and often depend on leniency applications or evidence gathered through dawn raids. For instance, in April 2024, the PCA fined the Portuguese Association of Companies in Condominium Management and Administration (APEGAC) EUR1.17 million for engaging in price-fixing practices.

Domestic cartels represent the bulk of enforcement actions, as most cases investigated by the PCA concern collusion between Portuguese companies operating within national borders. International cartels are less commonly addressed directly, although the PCA co-operates with the European Commission and other competition authorities under the ECN framework. In some instances, the PCA will act on information shared by other authorities, especially when conduct affects the Portuguese market.

Regarding the origin of investigations, there has been a growing reliance on leniency applications, particularly in larger or more complex cases. However, ex officio investigations remain significant and are often triggered by public procurement monitoring, anonymous complaints, or signals gathered through market intelligence. The PCA has been investing in digital screening tools and whistle-blower mechanisms to bolster ex officio detection.

The PCA has periodically published general informative documents, including guides and reports aimed at the prevention of cartels and other practices restricting competition in the national market.

Among others, the following are highlighted (some are only available in Portuguese):

• the Report on Competition and Purchasing Power in Times of Inflation;
• the Q&A Regarding Hub-and-Spoke Practices;
• the Guide on Good Practices Regarding Gun-Jumping;
• A Brief Note on Defending Competition in the Digital Sector in Portugal;
• the Competition Policy Priorities for 2025; 
• Competition: ECN Joint Statement on the Application of Competition Rules in the Context of the Ukraine War;
• Best Practices in Preventing Anticompetitive Agreements in Labor Markets; 
• the Guide to Fighting Collusion; 
• the Guide to Fighting Collusion in Public Procurement; 
• the Guidelines on Competition Impact Assessment of Public Policies; 
• the Guide for Business Associations; and
• the Role of Competition in Implementing the Economic Recovery Strategy.

Investigations can be initiated ex officio or following a complaint. The sanctioning powers of the PCA are exercised under a principle of opportunity, which means that the PCA is granted the ability to choose which cases to pursue based on criteria of public interest. Pursuant to Article 7(2) of the Competition Act, in assessing whether to initiate proceedings, the PCA must consider aspects such as its previously set priorities in competition policy, the elements of fact and of law brought to the file, and the seriousness of the alleged infringement.

The first stage of the investigation (inquérito) ends with a decision of the PCA to:

• terminate the investigation, if there is insufficient evidence for there to be a reasonable likelihood of a decision imposing a sanction;
• settle the case by issuing a sanctioning decision within the context of a settlement procedure;
• terminate the investigation by adopting a decision imposing conditions (commitments submitted by the party concerned in order to eliminate the effects on competition stemming from the practice, which are duly accepted by the PCA; it is worth mentioning that Law No 17/2022, of 17 August 2022, revoked the provision that prevented the reopening of the process if there was compliance with the conditions); or
• continue with the case by initiating the second stage of the investigation (instrução), with a notification to the defendant of a “statement of objections” (SO), when the PCA considers there is a reasonable likelihood of a decision imposing a sanction.

Dawn raids are common. When faced with such an inquiry, companies and employees have specific obligations, set out in Articles 18 to 20 of the Competition Act. First, employees and company representatives should provide access to premises and documents requested by the PCA during a dawn raid or search. This includes allowing officials to seize documents or electronic data that may be relevant to the investigation. The company’s management shall co-operate with the authorities to facilitate the investigation.

Outside counsel plays a crucial role in this context. While they shall not obstruct or hinder the investigation, they may accompany the PCA officers during the raid to ensure that the search is conducted legally and that the client’s rights are respected. Counsel may also provide legal advice during interviews and help assess the legality of the search or seizure and related investigation activities.

The PCA’s search and seizure activities are subject to specific legal limits. For example, the PCA must have prior judicial authorisation to conduct a dawn raid, either by obtaining a search warrant. The search should be proportionate to the investigation, meaning it cannot be overly broad or invasive.

When it comes to personal devices and personal information, the PCA’s powers are more limited. While the authorities can access business-related documents and electronic data, they cannot automatically access personal devices or information unrelated to the investigation, such as personal emails or private communications. If personal devices are involved, the PCA may need to demonstrate a legitimate reason for accessing the data, and they might be required to protect personal privacy interests.

PCA officials can require employees to assist in the search, such as by providing access to documents, data, and systems relevant to the investigation. However, employees cannot be induced to answer questions or provide self-incriminating testimony, as the right against self-incrimination is a protected right under both national and EU laws.

During an interview, employees may be questioned by PCA officials, but their statements cannot be used against them in criminal proceedings unless they are granted immunity or leniency. Employees or individuals who refuse to co-operate or answer questions during an interview can face legal consequences, such as penalties for obstructing the investigation.

The interview process involves PCA officials asking questions related to the suspected cartel activities. Typically, employees are informed of their rights, including the right to legal counsel. If an employee refuses to co-operate or answer questions, the PCA can report the refusal to the courts, potentially leading to fines or other penalties. The PCA may also attempt to use other methods of investigation, such as obtaining documents or testimony from other sources.

Once PCA has seized material, the company has the right to request copies of the material that has been taken. However, there may be restrictions if the material is sensitive or contains confidential information. Companies can challenge the seizure or request access to seized documents through the legal process, but this often requires demonstrating that the documents are not relevant to the investigation or that their seizure was unlawful.

There are legal restrictions on what can be searched and seized. The search must be targeted and proportionate to the investigation. The authorities cannot conduct overly broad searches of personal spaces or seize unrelated materials. Accessing personal devices is subject to additional scrutiny, and any data seized that is not relevant to the investigation must be excluded from the process.

Furthermore, the company has the right to request a review of the legality of the search and seizure, especially if they believe that their rights have been infringed upon. If any materials are found to be outside the scope of the investigation, they can be excluded, and any damage caused by the search may be subject to compensation.

The PCA also has the power to seal off any premises, books or records where there is, or may be, relevant accounting data or other documentation, including the devices on which it is stored or saved, such as computers and other electronic data storage equipment, during the period and to the extent that it is strictly necessary for carrying out the inspections.

Searches of premises, property and means of transport of the undertakings concerned (access to emails included), as well as the sealing of rooms or other premises, require the PCA officials to present credentials from the PCA and the judicial search order issued by the competent judicial authority/judge, according to law.

All companies and individuals have the right to be assisted by a counsel of their choice, in any act or diligence promoted by a public entity, including investigations, inquiries and dawn raids.

Counsels have their prerogatives expressly defined by law and their statute is constitutionally protected. The violation of the defence rights or restriction on the effective exercise of the counsel’s mandate by any entity or agent may constitute a serious crime.

Counsels should support the companies in co-ordinating the entire inspection procedure and serve as a control representative to verify the legality of the actions taken by the PCA’s investigators. In particular, counsels should attend the inspections and safeguard the interests of the company, officers and employees. 

The following initial steps are crucial: 

• verify the judicial search order, including the investigators’ identities, and identify the purpose of the inspection; 
• accompany the investigators during the inspection and attend any interviews, noting the questions and answers given; 
• confirm that the inspection is restricted to those locations and data directly connected with the inspection as defined by the judicial search order; 
• ensure that communications under legal privilege are respected; 
• request the suspension of the inspection procedures in the case of an unlawful act or procedure; note any cases of breaches and disagreements with the PCA’s investigators and ensure those notes are signed off by the inspectors; and 
• safeguard the observance of the other basic procedures described in 2.2 Dawn Raids/Search Warrants.

The PCA has the power, subject to the appropriate search orders, to carry out searches, examinations, collection and seizure of accounting data or other documentation, irrespective of the devices on which it is stored or saved, at the premises, property and means of transport of the undertakings concerned. The seizure of documents is to be authorised, ordered or validated by a judicial authority; however, the PCA can seize documents during the search or where there is an urgent requirement, or where any delay may endanger the finding of evidence, but any such seizures carried out by the PCA without a prior search order must be validated by the competent judicial authority within the following 72 hours.

Cartel infringements are administrative offences and, as such, there are legal restrictions concerning the type of elements of proof that may be used. Telecommunications and correspondence (if unopened) are specifically protected by the general regime of administrative offences (Misdemeanours Regime, Decree-Law 433/82, of 27 October 1982), the Criminal Code and by the Portuguese Constitution. 

The proof-gathering powers of the PCA have increased with the transposition of the ECN+ Directive, as under the current wording of the Competition Act, the PCA is endowed to carry out the inspection of documents and select copies or extracts to seize at the PCA premises or any other designated premises.

Furthermore, the PCA maintains the powers to interrogate employees and company representatives and, significantly, conduct searches not only of the company’s premises, but also of the vehicles and homes of the shareholders, of the members of the board and of employees.

The PCA also has the powers to seize documents that are deemed relevant to the investigation, no matter what their source (paper or digital), to carry out unannounced searches and to secure premises overnight (by sealing them). However, these powers generally require a specific judicial search order and, additionally, in some cases, the presence of a judge.

In the context of investigations conducted by the PCA, the Competition Act states that, as a rule and unless such documents are the object of, or an element in, the infringement itself (in which case, they may be seized), it is prohibited to seize documents that are covered by attorney-client privilege.

Only upon authorisation from the competent judge (ie, the judge responsible for the procedural safeguards) can the PCA undertake searches of lawyers’ offices, if there is a well-substantiated indication that evidence of a serious infringement of Article 9 or 11 of the Competition Act or Article 101 or 102 of the TFEU can be found there. The judge must be present during the search of lawyers’ offices (if the judge is absent, the search is null and void) and a Bar Association representative must be notified to be present (the notification to be present is a necessary requirement of the validity of the search; their presence is not, however, necessary).

Attorney-client privilege is recognised in Article 87 of the Portuguese Bar Association Rules, which covers all the facts, documents or information that directly or indirectly relate to professional matters disclosed by the client to its attorney. This privilege extends to any lawyers intervening in the matter and to their respective employees; it also extends to an in-house counsel.

One of the most direct forms is a refusal to provide the requested information. In this case, a company may argue that the request is too broad, burdensome, or that the information is confidential or irrelevant to the investigation. In some cases, companies may also attempt to delay the process by requesting extensions or claiming difficulties in gathering the necessary information.

Another way companies resist co-operation is by challenging the legality of the PCA’s request in court, arguing that it violates rights such as confidentiality or data protection. During dawn raids or inspections, resistance may also manifest as an attempt to prevent PCA officials from entering premises, often by claiming that the search is not properly authorised or that its scope is too broad.

Non-cooperation with the PCA can lead to significant consequences. Companies that obstruct the investigation can face fines, which are typically calculated based on the severity of the obstruction and the dimension of the company. These penalties can be substantial. Resistance can also result in increased scrutiny from the PCA, which may escalate the investigation, sometimes using more intrusive methods such as dawn raids or legal proceedings to force compliance.

Additionally, non-cooperation can harm a company’s chances of benefitting from leniency programmes. The programme allows companies involved in anti-competitive behaviour to reduce penalties in exchange for co-operating with the investigation. Resistance to co-operation can eliminate the possibility of leniency, making the company subject to higher fines and more severe consequences. In extreme cases, companies that obstruct investigations can face criminal liabilities, particularly if they are found to have destroyed evidence or engaged in other illegal activities to obstruct the investigation.

Moreover, resistance to co-operation can damage a company’s reputation, both within the business community and in the public eye. The perception that a firm is obstructing an investigation can harm its image, potentially affecting its relationships with clients, partners, and regulatory bodies. If non-cooperation continues, the PCA can initiate legal proceedings to compel the company to provide the necessary information or face additional sanctions.

Subjects of enforcement actions can designate and protect confidential or proprietary information during investigations by the PCA.

When responding to requests for information or during dawn raids, companies can flag certain documents or data as confidential or proprietary. This could include trade secrets, sensitive business strategies, or other information that, if disclosed, could harm the company’s competitive position.

The PCA is obligated to respect confidentiality and must ensure that proprietary or confidential information is handled appropriately throughout the investigation. There are mechanisms in place to protect this type of information, such as sealing documents or providing access only to authorised personnel.

In some cases, the PCA may agree to limit access to specific documents to protect sensitive information, especially when the information has no relevance to the investigation or is unrelated to the alleged anti-competitive behaviour.

Protection of confidential information extends beyond just the subject of enforcement action. Third parties and witnesses who provide information to the PCA can also request confidentiality for their submissions. If, for example, a witness provides testimony or documents, they can request that their identity or certain aspects of their testimony be kept confidential. The PCA is typically sensitive to such requests, especially if the disclosure of this information could endanger the witness’s safety or put them at risk of retaliation.

However, there are limits to this protection. The PCA can decide, based on the nature of the information and public interest, whether it should remain confidential. In some cases, the PCA might disclose confidential information if it is necessary for the purposes of the investigation or legal proceedings.

At the start of an investigation, the defence counsel can seek to challenge the initiation of the investigation by questioning the sufficiency of the evidence or the legal basis for the investigation.

If the PCA has limited or insufficient evidence to support the suspicion of a cartel, defence counsel can argue that there is no valid ground for proceeding with the investigation. They might raise arguments about the lack of an economic rationale for the alleged cartel or highlight that the business practices under investigation do not meet the thresholds for anti-competitive conduct.

During a dawn raid or when responding to an information request, defence counsel can challenge the scope or legality of the investigation. For example, if they believe that the PCA is requesting documents or access to information that is irrelevant to the investigation, is overly broad, or violates confidentiality rights, counsel can raise these concerns with the PCA. In some cases, they may request judicial review of the legality of the search warrant or seizure. Counsel can also ensure that the procedures followed by the PCA are in accordance with legal standards, thereby protecting the rights of the subject or target.

After gathering evidence, the PCA will issue a Statement of Objections (SO), which formally outlines the charges against the company or individual. This is a critical stage where defence counsel has an opportunity to raise legal and factual arguments in defence of the client. The SO provides the basis for the PCA’s reasoning, and defence counsel can argue against the interpretation of the evidence, challenge the legal qualifications of the alleged conduct, or dispute the factual assumptions made by the PCA.

Legal arguments at this stage might involve contesting the facts and the applicability of EU or national competition law to the case at hand or challenging the PCA’s conclusions regarding the existence of a cartel or the anti-competitive effects of the behaviour. Counsel might also raise arguments regarding market dynamics, the lack of collusion, or the pro-competitive effects of the behaviour. If applicable, they can provide evidence or arguments about lack of intent or other mitigating factors that could lessen the severity of the action. Economic analysis and expert opinions may be submitted.

Defence counsel can also raise factual and legal arguments to attempt to modify the prospective action taken by the PCA. For example, if the PCA is considering imposing a fine, defence counsel can argue for reduced penalties based on factors like the company’s co-operation with the investigation, the absence of harm to competition, or the lack of significant market power. If the company is willing to settle or provide useful evidence, counsel can also seek to promote a more lenient outcome.

The Leniency Regime is included in Articles 75 to 82 of the Competition Act, the provisions of which are binding upon the PCA and the courts. The criteria set out in the Competition Act to obtain immunity from, or the reduction of, a fine is clear and comprehensive. Furthermore, the PCA adopted Regulation No 1/2013 with respect to the procedures to obtain immunity from, or the reduction of, a fine, as well as an accompanying Explanatory Notice on substantive and procedural aspects, which will have to be revised, given the changes made to the Competition Act by the transposition of the ECN+ Directive.

Nonetheless, the PCA remains empowered with a degree of discretion to assess whether the legal conditions for the Leniency Programme to be applied have been fulfilled, especially those requiring subjective assessment (ie, see conditions (b) and (c) of the immunity regime under PCA Regulation No 1/2013 or assessment of the significant added value of the information/evidence provided by applicants for the reduction of a fine).

The Leniency Regime in Portugal can benefit undertakings, associations of undertakings or individuals, as all of these can be held liable for infringement of the Competition Act (eg, members of the board of directors or the supervisory board of legal persons and equivalent entities, as well as those responsible for the executive management or supervision of areas of activity where an administrative offence has occurred).

The Leniency Regime has been applied regularly, which demonstrates its usefulness as a legal instrument for investigating and sanctioning cartel cases in Portugal. This regime has been applied in several significant cases, including the catering services cartel (2007), the commercial forms cartel (2012), the polyurethane foam cartel (2013), the pre-fabricated modules cartel (2015), the office consumables cartel (2016), the insurance cartel (2019), the telecommunications cartel (2020), the surveillance and security cartel (2022), the electrical cables cartel (2023) and the technology consulting cartel (2024).

The last Amnesty Regime approved covers offences committed before 25 March 1999 and therefore has no current practical relevance.

Portugal has a whistle-blower regime that applies to cartel conduct. It was introduced through Law No 93/2021, which transposed the EU Whistleblower Directive (Directive (EU) 2019/1937) into national law and came into force in June 2022. This law provides a general framework for the protection of individuals who report breaches of EU or national law, including infringements of competition law such as cartels.

To benefit from whistle-blower protection under Law No 93/2021, the whistle-blower must act in good faith and have reasonable grounds to believe that the information reported is true at the time of disclosure. The report must concern a breach of law in one of the protected areas (which includes competition law), and it must be made via an appropriate channel – either internally within the company or externally to the competent authority, such as the PCA. In some cases, public disclosure is also protected. While the law provides protection against retaliation, including dismissal, demotion, or harassment, it does not include financial rewards for whistle-blowers.

The regime is not limited to bid rigging in public procurement. It applies more broadly to all forms of cartel behaviour, including price fixing, market allocation, customer sharing, and co-ordinated output restrictions. Bid rigging is included within the scope, but it is just one of several types of cartel conduct that can be reported and investigated.

The PCA encourages companies to implement internal compliance mechanisms, including whistle-blower channels. These internal systems are viewed as effective tools for early detection and prevention of anticompetitive behaviour. The PCA promotes a compliance culture in the private sector and supports companies that take proactive steps, such as establishing hotlines or anonymous reporting systems for employees to report suspected infringements.

The PCA can gather information and statements from company employees during dawn raids, formal interviews, or through requests for information. These actions are governed mainly by Articles 17 to 20 of the Competition Act.

The PCA may approach current employees during inspections or through formal interviews to obtain information about the company’s activities, especially regarding suspected cartel conduct. The law does not expressly exclude former employees from being contacted or questioned, and in practice, the PCA may seek their co-operation, especially if they held relevant roles or had knowledge of the alleged practices. However, former employees are not subject to the same internal co-operation obligations as current employees (under Article 19), since they are no longer under the company’s authority. Still, the PCA can invite them to provide statements voluntarily.

If the PCA conducts a dawn raid, it may question employees on the spot. These are usually unannounced and carried out with a judicial warrant (under Article 18(1) (b)). On-site questioning can involve informal clarifications or more structured interviews.

For formal interviews, the PCA usually sends written summons to the individual. The notice includes the purpose of the interview, the legal basis, and the individual’s rights, including the right to legal counsel. Interviews are often recorded and documented.

When issuing requests for information, the PCA may address them to the company or to specific individuals. These requests usually come with a deadline and a warning about the consequences of non-compliance under Article 69, which provides for fines in case of obstruction.

Employees have a duty to co-operate during inspections and provide access to relevant information (Article 19), but they also enjoy protection, particularly regarding self-incrimination. Under Article 20(1) of the Competition Act, individuals cannot be compelled to admit participation in an infringement. This aligns with the broader principle of the right to silence and against self-incrimination, protected under EU law (Article 48 of the Charter of Fundamental Rights of the EU) and Portuguese constitutional law (Article 32).

The PCA can send requests for documents and information to companies. Such requests must be made on appropriate grounds and contain at least the following: 

• the legal grounds for the request, the capacity in which the company is being asked for the documents/information and the purpose of the request; 
• the deadline to provide such documents/information; 
• a reference to the requirement to identify confidential information and provide adequate justification, and in such a case, the need to additionally provide a non-confidential version including a concise description of the omitted information permitting the comprehension of its content; and 
• the information that failure to comply with the request constitutes an administrative offence.

Usually, the documents/information should be provided within ten business days, unless a different time limit is established by the PCA on a grounded basis.

Information submitted by a natural person cannot be used as evidence to impose sanctions on that person, their spouse, unmarried partner, descendants, ascendants, siblings, relations up to the second degree, adopters or foster parents.

Requests for information and documents may take place within a sanctioning procedure or under the exercise of the supervision powers of the PCA. This has raised some opposition as, within its supervision powers, the Competition Act grants wide powers to the PCA.

Any request for information and documents that falls outside the scope of a sanctioning procedure should be submitted in advance to the companies and will require their consent; however, companies are always bound by a duty of collaboration.

According to the Portuguese Civil Procedure, the parties concerned may bring to the case all the evidence that they deem necessary, such as foreign decisions or evidence from other jurisdictions. 

However, the national judge will not be bound by such decisions or evidence and is always allowed to weigh up the evidence presented by the parties as it deems fit.

The PCA may ask another national competition authority to request an undertaking, on its behalf, for all information necessary for the purposes of determining whether an infringement of Article 101 or 102 of the TFEU has occurred. It may also ask another national competition authority to effect inspections, inquiries, searches and seizures on its behalf.

The PCA has to co-operate with other public/regulatory agencies, including in sector-specific regulated markets, and may, whenever necessary, request legal opinions or studies regarding the respective sector. 

Whenever a sectoral regulatory entity, within the scope of its responsibilities, is faced with a conduct that might constitute a competition law infringement, it shall inform the PCA of these facts and before issuing its final decision, it should notify the PCA of the draft decision in order for it to issue an opinion within the time limit defined by the regulatory entity. 

Similarly, the sovereign bodies and their holders, in the performance of their missions and functions of defence of the constitutional and legal order, have the duty to communicate to the PCA the violations of competition rules.

If the PCA becomes aware of facts occurring within the scope of sectoral regulation and likely to be classified as prohibited practices, it shall inform the sectoral regulatory agency for the latter to issue an opinion before reaching a decision.

As Portugal is an EU member state, the PCA co-operates with other EU national competition authorities in the framework of the European Competition Network (ECN).

With the transposition of the ECN+ Directive, the Competition Act now allows the PCA to request other national competition authorities to proceed with inspections, searches, inquiries and requests for information, on its behalf, in order to determine the existence of an infringement to Article 101 or 102 of the TFEU.

Likewise, other national competition authorities may ask the PCA to proceed with inspections, searches, inquiries and requests for information, on their behalf, in order to determine the existence of an infringement of Article 101 or 102 of the TFEU.

Additionally, the PCA may, at the request of other national competition authorities, notify the recipient of the SO, or an equivalent, of procedural acts that must be notified or of other documents, namely, pertaining to the execution of decisions imposing fines or periodic penalty payments. Furthermore, under certain conditions, the PCA can promote the execution of decisions imposing fines or periodic penalty payments at the request of other national competition authorities.

Sanctions for cartel infringements are based on administrative offences. There are no criminal proceedings in this respect.

Law 23/2018 regulates the procedure for issuing damages claims through private enforcement.

Anyone who has suffered harm caused by an infringement of EU and national competition law by an undertaking or association of undertakings can effectively exercise the right to claim full compensation, within a limitation period of five years.

A final condemnatory decision, issued by the PCA or by an appeal court, confirming that competition law has been infringed, establishes an irrefutable presumption of the existence and nature of such infringement, as well as of its material, subjective, temporal and territorial scope, for the purpose of a claim for damages.

A final condemnatory decision issued by an EU member state’s national competition authority sets a refutable presumption of the existence and nature of such infringement, as well as of its material, subjective, temporal and territorial scope, for the purpose of a claim for damages.

The claimant may request urgent and effective interim measures aimed at preserving evidence of the alleged infringement.

Despite this, the courts may, at the request of any party, demand that the counterparty or third parties supply evidence in their possession, if deemed proportional and relevant to the decision, with requests involving indiscriminate searches for information being refused. The court may demand evidence within a PCA file under specific criteria, in cases where no party or third party can reasonably provide it. Some types of evidence can only be requested when the procedure with the PCA is terminated. However, there is a “blacklist” of documents to which access cannot, under any circumstances, be granted by the court: leniency statements and settlement submissions.

In public and private enforcement cases, as in general civil litigation, all types of evidence are, in principle, admissible. This includes expert evidence, unless the evidence is obtained in breach of applicable law/people’s rights or unless the applicable law states that a specific type of evidence is required, in which case, the remaining types of evidence will not be admissible.

The technical, scientific or artistic judgement inherent in expert evidence is presumed to be outside the experience and the knowledge of the PCA/judge. While the PCA/judge may ultimately reach a conclusion that differs from the expert opinion, any such divergence must be duly justified.       

Enforcement actions involving cartels tend to be brought against multiple parties in a single proceeding, under the single infringement principle, intending to act against continuous cartel conduct, instead of reaching multiple separate agreements.

According to Article 5 of Law 23/2018, a private enforcement action involving a cartel may also be brought against multiple parties in a single proceeding.

The PCA has the power to impose sanctions for cartel practices. The PCA is responsible for the investigation, for the issuance of the SO and for the adoption of final decisions in cartel cases, since, under the Portuguese competition legal framework, participation in a cartel (as with other antitrust infringements) is an administrative offence rather than a criminal offence.

The Competition Act expressly establishes settlement procedures, which are applicable in general to all competition infringements.

Settlements may include pleading guilty or an agreement on commitments to bring the infringement to an end, allowing for a fine reduction and a swifter procedure.

Although aimed mainly at other types of infringements (in its Guidelines on the handling of antitrust proceedings, dated March 2013, the PCA states that, in principle, it will not accept commitments in cartel cases), the settlement procedure is applicable to cartels and the reduction of fines is cumulative with the Leniency Programme, where applicable.

Facts brought to the PCA under a settlement procedure cannot be appealed in court. 

Access to settlement documents by third parties or the other undertakings concerned is limited and requires the consent of the author of the settlement.

The settlement procedure is very much in line with the EU type of settlement, although with some particularities, such as the fact that the reduction of a fine is not defined in the Act, but is decided by the PCA on a case-by-case basis. 

The PCA has issued Guidelines on the method of setting fines (see above). The reductions will, in principle, be more relevant the sooner the settlement is reached.

The Portuguese Competition Act sets two phases to apply for settlements: during the investigation or in the prosecution phase. 

At any stage of the investigation, the party concerned can request settlement. Also, during the investigation, the PCA can set a time limit of not less than ten working days for the party concerned to apply for, and demonstrate its willingness to propose, a settlement. After that, the PCA will inform the party about the facts it is accused of, the evidence giving rise to sanctions and the fine amounts set by law for the offence in question. Once the discussion has been concluded, the PCA will set a time limit (of not less than ten working days) for the party concerned to submit a written settlement proposal. The PCA will review this proposal, assessing its conformity with the conversations held between the parties, and will refuse it if it considers the submission to be unsubstantiated (in which case, the decision is final and not subject to appeal); or accept it and draw a settlement notice that includes the identification of the party, legal stipulation of the rules infringed and the terms of such settlement, including the sanctions imposed and the percentage of reduction of the fine. The party concerned should confirm the notice, since the settlement submission is deemed revoked once the time limit of ten working days has elapsed.

If the proposal is deemed revoked, it cannot be used as evidence against any of the concerned undertakings in the proceedings.

After the conclusion of the investigation proceedings and when the PCA notifies the party concerned of the decision to initiate prosecution proceedings, the party can propose settlement, admitting the facts and accepting responsibility for the infringement. This proposal cannot be unilaterally revoked and suspends the time limit to respond to the SO. Such suspension cannot, however, be more than 30 working days. Such suspension can also be determined by the PCA to engage in discussions leading to such proposal. Once the settlement proposal has been received, the PCA will review it, and can refuse it if it considers the submission to be unsubstantiated (in which case, the decision is final) or accept it and issue a notice containing the terms of the settlement, including the sanctions imposed and the percentage reduction of the fine. The party concerned must confirm the settlement notice or the submission will be deemed revoked once the time limit of ten working days has elapsed.

As mentioned above, the reduction of the fine is not set out in the Act and will be decided by the PCA on a case-by-case basis.

According to Law 23/2018, a final condemnatory decision issued by the PCA or by an appeal court which confirms that competition law has been infringed establishes an irrefutable presumption of the existence and nature of such infringement, as well as of its material, subjective, temporal and territorial scope, for the purpose of a claim for damages. The same applies, although in more limited terms (rebuttable presumption), with respect to decisions issued by foreign competition authorities or foreign courts.

The PCA may impose as ancillary sanctions, among others: 

• publication in the official gazette and in a national newspaper, at the offender’s expense, of the decision related to the infringement; or
• a ban on participating in procurement proceedings for a maximum period of two years, if the infringement occurred during, or as a consequence of, such proceedings.

Sanctions are based on administrative offences. There are no criminal proceedings in this respect.

Sanctions are based on administrative offences. There are no criminal proceedings in this respect.

The most significant fines for cartel conduct have been administrative in nature, with the highest sanctions imposed on companies rather than individuals. One of the largest fines to date was issued in 2021, when the PCA imposed a total of EUR304 million on four insurance companies for participating in a price-fixing and market-sharing cartel.

While the PCA has the authority to fine individuals, penalties against individuals have so far been rare and relatively modest. Portuguese law allows for individual liability under the Competition Act, with fines of up to 10% of the individual’s annual income, but these are seldom applied. Most enforcement actions and fines are directed at companies.

There is currently no criminal liability for cartel conduct under Portuguese competition law. Cartels are treated as administrative infringements, not criminal offences. As a result, no individuals have served custodial sentences or spent time in jail in Portugal for cartel-related conduct. Similarly, there is no public notice of Portuguese citizens being extradited to another jurisdiction for a cartel offence, nor are there any known cases of Portuguese nationals agreeing to serve jail time abroad as part of a plea bargain in a foreign enforcement action.

Portugal follows the general principles of EU competition enforcement, and while the PCA has not published detailed formal guidelines on compliance programmes (as some other national authorities have), it has in various decisions and public statements acknowledged their relevance. In some cases, the PCA has noted the lack of compliance culture as an aggravating factor, suggesting that companies are expected to take internal compliance seriously.

Under Portuguese competition law, the existence of an effective compliance programme can be considered as a mitigating factor when the PCA is determining the amount of a fine. However, the weight given to such a programme depends heavily on its genuine effectiveness and the context of the infringement. The programme must be shown to have been well-structured, actively implemented, and tailored to the company’s risk profile, rather than simply existing on paper.

If a company is found to have violated competition law – such as by participating in a cartel – the PCA will not automatically treat the existence of a compliance programme as a reason per se to reduce the fine.

Sanctions imposed by the PCA are primarily administrative fines and do not typically include mandatory consumer redress or restitution as part of the public enforcement process. The PCA’s main role is to investigate and sanction anti-competitive conduct, not to award compensation to affected consumers or businesses.

However, the PCA’s decisions can have important consequences for private litigation, including actions for damages or restitution. Portuguese law explicitly allows for follow-on actions, meaning that once the PCA finds an infringement (such as a cartel or abuse of dominance), injured parties – including consumers, competitors, or public entities – can use that decision as the basis for a civil claim for compensation before the courts. Portugal transposed the EU Antitrust Damages Directive (Directive 2014/104/EU) through Law No 23/2018, which strengthened the legal framework for private damages actions.

As a result, although the PCA itself does not impose restitution, its decision can trigger or support civil litigation that may lead to redress. The existence of ongoing or planned private litigation does not typically influence the PCA’s decision on whether to sanction, but it may affect how and when redress is ultimately obtained by consumers or other injured parties.

As a rule, the decisions handed down by the PCA can be appealed to the CRSC. However, the Competition Act sets out that certain PCA decisions may not be appealed. 

After being notified of a final decision, the party concerned must lodge the appeal before the PCA within 60 days (appeals against interlocutory decisions or against any interim measure adopted have shorter deadlines). The PCA then has 60 days to forward all relevant documentation to the Public Prosecutor’s Office. The Competition Act allows the PCA to present its own allegations at this stage, along with other information it deems relevant. The Public Prosecutor’s Office cannot withdraw the accusation without the PCA’s agreement.

It is not mandatory to hold a court hearing for the CRSC to rule, but the party concerned – as well as the PCA and the Public Prosecutor’s Office – may oppose this and require that a court hearing take place.

Although the prosecution is conducted by the Public Prosecutor’s Office, the PCA is entitled to participate in the court hearing, to submit pleadings and to appeal independently against the CRSC decision.

The CRSC decision is appealable to the Lisbon Court of Appeals, the ruling of which is final and binding. The CRSC will rule based on evidence presented at the hearing, in addition to the evidence gathered by the PCA during the administrative phase of the proceedings. The Competition Act awards the CRSC full jurisdiction to review decisions where the PCA has imposed a fine or a periodic penalty payment and can reduce or increase the fine or the periodic penalty payment imposed.

Appeals, including interlocutory appeals, have a purely devolutive effect, except in respect of decisions imposing measures of a structural character, whose effect is suspensive. 

In the case of decisions imposing fines or other penalties provided for by law, the person concerned may request, when lodging the appeal, that it have a suspensive effect when it offers to give a bond within 20 days in the amount of half of the fine imposed, the granting of such effect being conditional on the effective provision of a bond.

The process begins with a confidential investigative phase, during which the PCA gathers intelligence and plans inspections. Once dawn raids are carried out, the formal investigation phase begins and can take significant time before any formal charges are issued.

The first phase, from raids to the issuance of the Statement of Objections, usually lasts between one and two years, depending on the scope of the investigation and the volume of evidence collected. Once the Statement of Objections is issued, the administrative phase, including the companies’ right to respond, submit evidence, and request hearings, can take an additional year to a year and a half.

After the PCA issues its final decision, companies often appeal to the Competition, Regulation and Supervision Court, where proceedings may last another one and a half to two years before a ruling is handed down. If further appeals are filed to the Court of Appeal in Lisbon or the Supreme Court, the appellate phase can extend the case by another two to three years.

In some cases, particularly those involving multiple entities, procedural challenges, or constitutional issues, proceedings may take longer than three years. On the other hand, cases resolved through settlement procedures or involving full co-operation under the leniency programme may conclude more quickly, sometimes between one to three years. Nonetheless, the overall trend reflects a lengthy and meticulous enforcement process, with substantial time allocated to ensuring procedural fairness and legal scrutiny at each stage.

Law 23/2018 sets out the transposition of Directive 2014/104/EU, providing the procedural rules ensuring that anyone who has suffered harm caused by an infringement of EU and national competition law by an undertaking or association of undertakings can effectively exercise the right to claim full compensation.

According to Article 19 of Law 23/2018, class actions can be set out by associations and foundations for the defence of consumers, as well as by companies’ associations. 

The Portuguese Constitution provides the fundamental right to petition and to seek collective redress (actio popularis), setting out that every citizen has the right to submit, individually or jointly with others, claims in defence of their rights, the constitution, the laws or the general interest. This includes the right to apply for appropriate compensation, as an aggrieved party or parties, personally or via associations that purport to defend the interests in question. Law-Decree No114/2023 is the national transposition of Directive (EU) 2020/1828 on representative actions for the protection of consumers’ interests. Accordingly, this Law-Decree together with the Portuguese Act 83/95, dated 31 August 1995 (Lei da Acção Popular), set out the legal framework applicable to class actions, including antitrust damages actions. The regime laid down by these two pieces of legislation allows not only natural persons but also associations and foundations (other legal persons not included) to act in the defence of collective and diffuse interests, particularly through a claim for damages. 

As regards legitimacy, associations and foundations must have legal personality, must expressly include in their attributions or in their statutory objectives the defence of the interests at stake, and must not take part in a professional activity that competes with that of the defendant.

Collective redress follows an opt-out system, through which the claimant automatically represents the remaining holders of the rights and interests at stake, unless they opt out of the representation, following the court’s citations and/or public notices for this purpose.

Indirect purchasers can bring claims for damages but are also subject to the burden of proof regarding demonstrating the following general civil liability requirements laid down in the Portuguese Civil Code, which are applicable to antitrust damages actions (with some specificities, namely the presumption that cartels cause damages): 

• the existence of human conduct; 
• the unlawfulness of the conduct; 
• the imputation of the conduct to the wrongdoer; 
• the existence of damages; and 
• the existence of a causal link between the latter two of these.

As far as the existence of damages and a causal link is concerned, indirect purchasers would be required to present evidence that the damage caused by the direct purchaser was transferred to them and therefore caused to them.

However, on antitrust damages actions, the indirect purchasers’ burden of proof is reduced; they will be deemed to have proved that a passing-on to them occurred where they have shown that:

• the defendant has committed an infringement of competition law (as declared by the PCA, through a final decision, or by the Competition Court, through a decision which has become res judicata, of the existence of an infringement of competition law that constitutes an irrebuttable presumption of the existence, nature and material, subjective, temporal and territorial scope of that infringement, for the purposes of an action for damages arising therefrom); 
• the infringement resulted in an overcharge for the direct purchaser of the defendant; and 
• the indirect purchaser purchased the goods or services that were the subject of the infringement, or purchased goods or services derived from or containing the goods or services that were the subject of the infringement.

With this additional legal presumption resulting from a final decision by the PCA or by the Competition Court, through a decision that has become res judicata, as set forth in Law 23/2018, it is much more likely for indirect purchasers to obtain compensation, especially when compared with the previous regime, where the burden of proof that the defendant had committed an infringement of competition law rested with the indirect purchaser.

Whether it is possible for the alleged infringer to raise a passing-on defence depends on the burden of proof and its consequences. The burden of proof rests with the defendant, who will have to present proof of the existence of a passing-on that eliminates or reduces the damages caused to the claimant. Such proof can be difficult to produce. 

There is a principle of admission of evidence, obtained by public authorities in the exercise of their functions and material powers, along with a general duty of reporting and collaboration by public officials in the exercise of their functional prerogatives and within the framework of the applicable regulations.

Before Law 23/2018 there were few cases of this type of action in Portugal, and the success rate was very low (only around seven cases resulted in compensation since 1988).

With the coming into force of Law 23/2018, the number of damages actions has been increasing, with various lawsuits currently pending. However, it is not possible to draw conclusions about their success or duration.

There are no specific legal provisions regarding this issue, provided that the lawyers’ compensation is agreed within the limits set forth by the Statute of the Portuguese Bar Association, which, among other things, prohibits quota litis agreements.

The general provisions of the regulation on procedural fees apply. Procedural fees include (broadly) court fees (taxa de justiça) and court expenses. Court fees are due and charged for the procedural initiative of the party and depend on the amount of the claim or claims at stake in the proceedings, as well as on the complexity of the case. Court expenses relate to the costs of certain procedural acts or services.

Considering the particulars of a given case (the amount of the claims at stake), it is possible to make an approximate estimate of the procedural fees to be charged in the proceedings.

The final court decision (or a decision that finally decides any procedural incidents or appeals) will rule on the liability for costs, with the general rule being that the losing party will be liable for payment of the procedural costs in proportion to its loss.

The law generally allows the parties to the proceedings one appeal from the decisions of the court of first instance to the court of appeals. There may be an appeal on the merits or a review appeal to the Supreme Court, provided certain conditions are met and the court’s jurisdiction is respected, without prejudice to the rules on preliminary reference to the Court of Justice of the European Union, where applicable.

Exceptionally, there may also be an ultimate appeal to the Constitutional Court when the interpretation and application of constitutional rules might be at stake.

The PCA does consider certain types of information sharing between competitors to constitute a cartel offence, particularly when the exchange reduces strategic uncertainty between firms and restricts competition. These cases are treated seriously, especially if the information shared relates to current or future pricing, future commercial strategies, production levels, market allocation, or customer lists.

The PCA applies to a standard that distinguishes between legal and illegal exchanges based on the nature, frequency, and strategic relevance of the information shared. Information sharing is likely to be considered an infringement where the data is strategic, not publicly available, and capable of influencing market behaviour. This is particularly the case when the exchange takes place regularly or involves future intentions rather than past data.

The legal standard is rooted in the notion of a concerted practice under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 9 of the Portuguese Competition Act. An exchange does not require proof of a formal agreement; it is sufficient that competing undertakings co-ordinate their behaviour knowingly through information exchange. Even a unilateral disclosure, if followed by aligned conduct, may trigger liability.

These types of infringements have become increasingly common in PCA enforcement. In recent years, the PCA has investigated and sanctioned companies in sectors such as insurance, banking, and driving schools for engaging in information exchanges that facilitated collusive outcomes. For example, in the insurance cartel case, the PCA found that companies shared commercially sensitive data to align their pricing strategies in tenders, which it qualified as a serious cartel offence.

In addition to traditional cartel enforcement, the PCA monitors industry associations, as these forums can sometimes serve as platforms for unlawful information sharing. The PCA also conducts market studies to assess risks of coordination in sectors where companies may be inclined to exchange sensitive data under the guise of benchmarking or transparency.

The PCA has expressed growing concern about the potential for AI and pricing algorithms to facilitate anti-competitive practices, including cartel-like behaviour. In December 2024, the PCA published a paper highlighting competition risks associated with access to generative AI models, emphasising the need for vigilance in this area.

While the PCA has not yet initiated formal enforcement actions specifically targeting the use of AI or pricing algorithms in cartel conduct, it has signalled an intention to monitor these developments closely. The authority’s focus includes assessing how AI-driven tools might enable or conceal collusive behaviour, particularly in digital markets where algorithmic pricing can be prevalent. This aligns with broader trends among competition regulators globally, who are increasingly scrutinising the role of technology in facilitating anti-competitive agreements.

In its 2023 activity report, the PCA indicated that it would prioritise investigating potential risks and challenges posed by the emergence of AI in 2024.

In Portugal, monopolisation itself is not typically classified as a cartel offence, but it can still fall under broader competition law violations. The PCA enforces the Competition Act, which prohibits agreements that restrict competition, including cartels.

While cartels involve collusion between competitors, monopolisation is more about abuse of dominance – where a company exploits its market power to restrict competition unfairly. The PCA applies Article 11 of the Competition Act, which aligns with EU competition law, to assess whether a dominant firm is engaging in abusive practices such as predatory pricing, refusal to supply, or excessive pricing.

If monopolisation leads to anti-competitive effects similar to those of a cartel – such as price fixing or market allocation – it could be investigated under restrictive practices rather than cartel offences. The PCA has the authority to impose fines and other sanctions to prevent any anti-competitive behaviour.

The PCA has been particularly active in enforcing cartel regulations, with a strong focus on public procurement, labour markets, and digital economy.

• Public Procurement: The PCA has prioritised detecting bid rigging and collusion in government contracts, as these practices can lead to inflated costs and reduced competition.
• Retail and Distribution: The PCA has conducted hub-and-spoke investigations, targeting price-fixing arrangements among suppliers and retailers. These cases have resulted in significant fines.
• Labour Markets: There has been growing attention on anti-competitive agreements between employers, such as wage-fixing or no-poach agreements, which restrict worker mobility.
• Digital Economy: While enforcement in this sector has been limited so far, the PCA has expressed interest in addressing competition concerns related to platform dominance and data usage.

The PCA is likely to focus on several emerging sectors in the future. Technology and digital platforms are expected to face greater scrutiny, particularly in areas like algorithmic collusion and data-driven anti-competitive practices. As digital markets continue to evolve, authorities may target businesses that use algorithms or data analytics to manipulate pricing or restrict market competition.

Healthcare and pharmaceuticals could also become a priority, as global trends indicate increased vigilance in detecting pricing agreements and market allocation strategies that limit consumer access. With the pharmaceutical industry playing a crucial role in public health, regulatory bodies may examine whether firms engage in practices that inflate drug prices or restrict competition through exclusive supply deals.

Energy and sustainability are other sectors that may come under investigation. As the world shifts toward renewable energy, competition authorities could pay closer attention to collusive behaviour in green energy markets, ensuring that businesses do not engage in anti-competitive agreements that hinder innovation or access to cleaner alternatives.

The PCA has been increasingly focused on the challenges posed by ephemeral communications in cartel investigations.

To address this, the PCA has emphasised the importance of data retention policies and has encouraged companies to implement measures that ensure relevant communications are preserved. While there is no explicit regulation solely targeting ephemeral messaging, the PCA has issued guidance on evidence preservation in broader competition law enforcement, stressing that companies must maintain records that could be relevant to investigations.

Failure to retain or produce such evidence can have serious consequences. Companies that obstruct investigations or fail to comply with document requests may face fines and legal sanctions. Additionally, if a company is found to have deliberately destroyed evidence, it could be considered an aggravating factor in determining penalties and be potentially subject to additional criminal-related offences.

Portugal does recognise “no-poach” agreements and labour market allocations as potential cartel offences, particularly when they restrict competition in the labour market. The PCA has issued guidance on these agreements, emphasising that they can limit worker mobility and artificially suppress wages, much like traditional cartels do in product markets.

The PCA applies Article 9 of the Competition Act, which prohibits agreements that restrict competition, including those that prevent companies from hiring each other’s employees. These agreements are considered horizontal restrictions, meaning they occur between competitors and can be subject to significant fines and sanctions.

In terms of prevalence, no-poach agreements are more common in franchising chains, where businesses may restrict employee movement between locations. However, outside of legitimate commercial ventures, such agreements can be highly problematic, particularly in industries where skilled labour is in high demand. The PCA has already sanctioned companies for engaging in anti-competitive labour practices, including a case involving Portuguese football clubs, which restricted player transfers under a no-poach arrangement.

The leniency programme in Portugal has become an increasingly valuable enforcement tool for the PCA. Companies involved in cartels can report on their participation in exchange for immunity or reduced fines, which encourages early detection of anti-competitive practices. Over the past few years, there has been a notable increase in leniency applications, signalling a shift towards greater corporate awareness of the risks associated with cartel activity.

This rise in applications has also led the PCA to adopt a more proactive stance on enforcement. Instead of relying solely on complaints or leniency filings, the authority has ramped up ex officio investigations, where it initiates cases based on market intelligence, whistle-blower reports, or economic screening tools. These investigations have been particularly effective in uncovering bid-rigging schemes in public procurement, price-fixing agreements in retail, and anti-competitive labour practices, such as wage-fixing and no poach agreements.

Another significant development is the PCA’s collaboration with other national and European competition authorities, enabling cross-border enforcement actions against cartel behaviour. This trend reflects the global effort to curb collusion in sectors like digital markets, pharmaceuticals, and energy, where anti-competitive conduct can have widespread economic consequences.

The PCA has historically focused on domestic cartel investigations, with a significant portion of cases involving bid rigging, price fixing and labour market restrictions within Portugal. According to recent reports, around 75% of cartel cases pursued by the PCA are domestic in nature. These cases often involve public procurement collusion and sector-specific agreements that restrict competition within the national market.

However, cross-border cartel behaviour has also been a growing concern, particularly in industries like pharmaceuticals, energy, and digital markets. The PCA collaborates with EU competition authorities to tackle international cartels, and approximately 25% of cartel investigations involve cross-border elements. These cases often require co-ordination with the European Commission and other national regulators.

Looking ahead, the trend suggests that domestic enforcement will remain strong, particularly in public procurement and labour markets, but cross-border investigations are expected to increase as Portugal integrates further into the EU’s digital and energy markets. The PCA is also investing in advanced forensic tools and AI-driven cartel detection, which could lead to more proactive investigations.

In October 2023, the PCA published its Guidelines on Sustainability Agreements and Competition Law. These guidelines are designed to help companies understand how they can engage in co-operation aimed at achieving sustainability goals – including environmental, social, and governance-related objectives – without infringing competition rules.

The PCA explicitly warns against using sustainability as a pretext for cartel behaviour such as price fixing, market sharing or output limitation. The Guidelines aim to strike a balance: they encourage ESG co-operation where it can be justified and structured properly, but reaffirm the prohibition of classic hardcore restrictions, even when they are presented under an ESG label.

Post-pandemic inflation and supply chain disruptions have played a significant role in shaping cartel enforcement in Portugal. The PCA has been closely monitoring industries where price volatility and supply constraints could create opportunities for anti-competitive behaviour.

Inflationary pressures, particularly in energy and food markets, have led to concerns about price fixing and collusion among suppliers seeking to stabilise profits amid fluctuating costs. Additionally, supply chain disruptions have increased scrutiny on distribution networks, where companies may engage in market allocation or bid rigging to secure contracts in uncertain economic conditions.

As inflation stabilises, enforcement efforts are expected to focus on preventing long-term anti-competitive agreements that emerged during the crisis. The PCA has identified public procurement, retail, and digital markets as areas where firms may attempt to coordinate pricing or restrict competition. However, the expected market conditions and additional international barriers to commerce could be conducive to additional risks.