Antitrust Litigation 2024 Comparisons

In Portugal, the Private Enforcement Law – Law No 23/2018 – (the “Law”), following Directive 2014/104/EU, lays down rules governing actions for damages for infringements of the competition law provisions of the member states and of the EU.

Accordingly, anyone who has suffered harm caused by an infringement of competition law has the right to claim full compensation for that harm (this compensation includes actual loss and loss of profit, plus the payment of interest).

This law also includes, among others, rules on the limitation period for this right to damages, the probative force of decisions by competition authorities and appeal courts, repercussions, access to evidence and a rebuttable presumption that cartels cause damage.

Additionally, in everything that is not contrary to this Law, the substantive and procedural rules contained in the Portuguese Competition Act – Law No 19/2012 – (PCA), the Portuguese Civil Code and the Portuguese Civil Procedure Code, respectively, apply (see Article 23(1) of the Law).

On the other hand, pursuant to Article 24(1) of the Law, the substantive provisions of this law, including those relating to the burden of proof, do not apply retroactively. Therefore, in the case of infringements of competition law that ceased before 5 August 2018 (date of entry into force of the Law), the applicable substantive provisions are the ones set out in the Portuguese Civil Code (notwithstanding CJEU has already established that substantive provisions of the Directive, such as the ones regarding limitation period, are applicable to infringements that ceased before 5 August 2018 – see Judgment of the Court of Justice, Case C-267/20, Volvo AB and DAF Trucks NV v RM, of 22 June 2022).

The Portuguese Civil Code does not provide any particular rules regarding the infringement of the competition law, but according to its Article 483(1), that sets the extra-contractual liability regime, any injured party can claim damages from any breach where a causal link can be established between the conduct and the damages.

With the Law, there has been, in Portugal, a steady increase in claims based on both EU competition law infringements and purely national ones without cross-border effects.

Popular actions (which are not provided for in the Directive but have been taken into account by the Law) also increased. Article 19(2) of the Law provides that legitimacy to bring popular actions is given to associations and foundations whose purpose relates to consumers’ defence, and associations of companies whose members have been harmed.

In this context, the authors highlight the following recent court decisions.

• Judgment of Lisbon Court of Appeal, Case 54/19.6YQSTR.L1-PICRS, RENAULT TRUCKS SAS v Transportes Guilherme Fernandes, Lda., of 6 November 2023 (still pending)

The Court settled that:

I. The interpretation of an EU Commission Decision penalising conduct in breach of Article 101 of the Treaty on the Functioning of the European Union (TFEU) is based on its operative part and its grounds. The grounds include recitals of the decision that are necessary to understand its provisions or that constitute essential support for it.

II. In the case known as the “Trucks Cartel” (European Commission case AT.39824 – Trucks) and in the context of a private enforcement action for conduct in breach of Article 101 of the TFEU, the inferences made, with regard to the facts concerning the existence of damage and a causal link, on the basis of recitals contained in the EU Commission Decision, may be valid.

III. If the court concludes, given the objective circumstances of the case, that determining the exact amount of the damage is practically impossible or excessively difficult, it may set the value of the damage on the basis of a judicial estimate provided for in Article 9(2) of the Law, which transposed Article 17(1) of Directive 2014/104/EU, this power of the court being an expression of the principle of effectiveness.

IV. According to the case law of the CJEU (see Judgment of the Court (First Chamber), Case C-267/20, AB Volvo and DAF Trucks NV v RM, of 22 June 2022), the application of the five-year limitation period provided for in Article 10 of the Directive and Article 6(1) of Law No 23/2018 depends on three conditions: (i) the bringing of an action for damages for an infringement which ceased before the Directive entered into force; (ii) that the action was brought after the entry into force of the respective Transposition Law; and (iii) the limitation period under the applicable national rules has not yet expired on the date of expiry of the deadline for transposition of the Directive.

• Judgment of Lisbon Court of Appeal, Case 20/20.9YQSTR.L1, Super Bock, Bebidas S.A. v Associação Ius Omnibus, of 20 February 2023 (res judicata)

The Lisbon Court of Appeal has annulled an order of the Portuguese Competition, Regulation and Supervision Court (TCRS) ordering the preservation of evidence by Super Bock and its shareholders. It gave instructions for the order to be reinstated. The Court took the opportunity to clarify the new access to evidence regime of the Law and the importance of combating information asymmetry and protecting the effectiveness of the right to compensation for those harmed by anti-competitive practices.

• Judgment of Supreme Court of Justice, Case 6/19.6YQSTR-C.L1.S1, DAIMLER AG v Carnes Campicarn, S.A., of 8 March 2022 (res judicata)

The Court ruled that it is only with the publication of a Commission Decision that sufficient elements are considered to have been consolidated for the limitation period to begin to run, since it is only with the publication of the European Commission’s condemnatory decision in the OJEU that the injured parties can be considered to have been aware of their entitlement.

In Portugal, it is considered an infringement, which underpins the claim, to violate the provisions of Articles 9, 11 and 12 of Law 19/2012, and the corresponding rules of other member states and/or Articles 101 and 102 of the TFEU, according to Article 2(l) of the Law.

In short, Articles 9, 11 and 12 of the Law consider restrictive agreements, abuse of a dominant position and abuse of economic dependence to be infringements of competition law, respectively.

In addition, the violation of other competition law rules also gives rise to the right to compensation (Article 1(1) of the Law).

There are three types of claims:

1. Stand-alone – the injured party brings an action for an infringement of competition law, an infringement which has not yet been declared and will have to be declared by the court in order for compensation to be awarded. In this type of action, the injured party has the burden of proving the existence of the infringement, the damage suffered as a result of the infringement and the existence of a causal link between the two.

2. Follow-on – the injured party brings an action following the final declaration of the infringement in a public enforcement process.

3. Mixed claims – mixed claims include elements of stand-alone and follow-on actions.

Finally, injured parties can request interim measures to, namely, (i) guarantee the payment of the compensation claimed, and (ii) preserve evidence.

According to Article 112 of Law No 62/2013, the TCRS is responsible for judging actions for damages whose cause of action is based exclusively on infringements of competition law, actions aimed at exercising the right of recourse between co-infringers, as well as requests for access to evidence relating to such actions, under the terms of Law No 23/2018, and also, all other civil actions whose cause of action is based exclusively on infringements of competition law provided for in Articles 9, 11 and 12 of Law No 19/2012, in corresponding rules of other member states and/or in Articles 101 and 102 of the TFEU, as well as requests for access to evidence relating to such actions, under the terms provided for in Law No 23/2018.

The final decision handed down by the TCRS can be appealed both to the Lisbon Court of Appeal, firstly, and to the Supreme Court of Justice, secondly, if certain requirements are fulfilled.

The decision can be appealed to the Lisbon Court of Appeal when the value of the case exceeds EUR5,000 and the value of the defeat is greater than EUR2,500. This court reviews both factual and legal issues.

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 must be unfavourable to the appealing party in an amount more than half of this value.

In addition, alternative means of dispute resolution (ADR) are also available in the Portuguese system.

Under Article 7(1) of the Law, the declaration by the National Competition Authority (AdC), by means of a final decision, of the existence of an infringement of competition law 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 compensation for the damages resulting from it.

Article 7(2) of the Law provides an identical presumption regarding a declaration of this nature by an NCA from any EU member state, but, in this case, the legal presumption is rebuttable.

Additionally, if a case relies on identifying an infringement under investigation or subject to a non-final decision, the court may suspend proceedings, as per Article 7(4) of the Law.

Finally, the AdC can assist in damage actions by helping the court quantify damages, although it can request not to assist, providing justification, as stated in Article 9(3) of the Law.

The burden of proof varies between standalone and follow-on actions.

• Stand-alone actions – the claimant must prove:
1. an infringement occurred;
2. the damages it suffered; and
3. the causal link between the infringement and the damages (Article 342(1) of the Portuguese Civil Code).
• Follow-on actions – due to Article 16(1) of Council Regulation (EC) No 1/2003 and Article 7(1), (2) and (3) of the Law, it is easier for the claimant to prove the existence of an infringement (in the case of irrebuttable presumptions, the infringement is already proven), but it must still prove the damages suffered and the causal link between the infringement and those damages.

In contrast, the defendant must prove facts that counteract, modify, or extinguish the claimant’s allegations (Article 342(2) of the Portuguese Civil Code).

In addition to the presumptions already mentioned, there are other legal presumptions that ease the burden of proof for claimants, such as the following.

• Decisive influence – Article 3(1) of the Law recognises the obligation to compensate the injured parties for the damage resulting from the infringement. In turn, Article 3(2) states that the person or persons who have exercised decisive influence, in the terms of Article 36(2) of the PCA, during the infringement over the offender are also liable for the obligation to pay compensation. In this sense, Article 3(3) establishes the legal presumption that a person should be considered to exercise decisive influence over another when they hold 90% or more of its share capital, unless proven otherwise.
• Declaration of an infringement by a Court of Appeal of any EU member state – Article 7(3) of the Law states that the declaration by a Court of Appeal of any EU member states, by means of a final judgment, of the existence of an infringement of competition law constitutes a rebuttable presumption of the existence, nature and material, subjective, temporal and territorial scope of that infringement, for the purposes of an action for compensation for the damages resulting therefrom.
• Pass-on Defence – the defendant may invoke that the claimant passed on all or part of the additional costs resulting from the infringement to the price charged downstream in the production or distribution chain. In that case, the defendant bears the burden of proof. However, there is a legal presumption, regarding indirect purchasers, of passing-on, if proved by the indirect purchaser that:
1. the defendant committed the infringement;
2. this infringement resulted in an additional cost for the defendant’s direct purchaser; and
3. the indirect purchaser acquired the goods or services affected by the infringement, or goods or services derives from or containing the goods or services affected by the infringement (see Article 8(1), (2) and (3) of the Law).
• Cartel Agreements – Article 9(1) of the Law presumes cartel infringements cause harm, but the infringer can rebut this presumption.

On the other hand, there is no specific standard of proof. Instead, the principle of free assessment of evidence applies. However, certain types of proof, such as authentic acts, have special evidentiary value (Article 371(1) of the Portuguese Civil Code).

According to Article 8(1) of the Law, in actions for damages, the defendant may invoke as a defence the fact that the claimant passed on all or part of the additional costs resulting from the infringement of competition law to the price charged downstream in the production or distribution chain, and the defendant bears the burden of proof.

Conversely, in actions for damages whose claim is based on the passing on of additional costs to an indirect purchaser, the burden of proving the existence and scope of this passing on is on the latter (Article 8(2) of the Law).

However, according to Article 8(3) of the Law, unless proven otherwise, additional costs are presumed to have been passed on to the indirect purchaser if the latter demonstrates that:

a) the defendant committed an infringement of competition law;

b) that infringement resulted in an additional cost for the defendant’s direct purchaser; and

c) it acquired the goods or services affected by the infringement, or goods or services derived from or containing the goods or services affected by the infringement.

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:

• of the infringing behaviour and the fact that it constitutes an infringement of competition law;
• the identity of the infringer; and
• of the fact that the infringement of competition law caused harm to it (even if it does not know the full extent of the damages).

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 a competition authority initiates an investigation into the infringement to which the action for damages relates (Article 6(4) of the Law). This suspension does not cease until a year after an NCA is declared by final judgment or by a res judicata decision of a court (as dictated by Article 6(5) of the Law). The limitation period is also suspended for parties taking part in an ADR procedure for as long as the procedure is ongoing, as provided for in its Article 6(6).

Lastly, the limitation period is interrupted by the summons or judicial notification of the alleged infringer of any acts that express the intention to exercise the right, according to Article 6(7) of the Law.

In the Portuguese courts, proceedings may go on for at least five years until a final decision is announced. That is the current average waiting time.

Notwithstanding, 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:

• 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.

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 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 Portuguese 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 Portuguese Civil Procedure Code).

According to Article 19(1) and (2) of the Law, actions for damages for infringement of competition law may be brought under Law No 83/95 (“Popular Action Law”).

Furthermore, Decree-Law No 114-A/2023 (“Decree-Law”), which transposes Directive (EU) 2020/1828 of the European Parliament and of the Council, of 25 November 2020, on representative actions for the protection of the collective interests of consumers, established a specific national regime for representative actions to protect the rights and interests of consumers.

In Portugal, it is established the opt-out regime. However, in the context of the Decree-Law, the opt-in regime has been established for consumers who do not have their habitual residence in Portugal.

Both direct and indirect purchasers are represented/may claim damages. Notwithstanding, the Decree-Law does not recognise active legitimacy to individual consumers to file representative actions.

Only in the context of the Decree-Law and, particularly, in cross-border representative actions, a procedure is provided for the designation of national entities as qualified entities for the purpose of bringing cross-border representative actions in other EU member states.

The rules on jurisdiction are set in 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.

The applicable laws are the Portuguese and EU ones.

According to Article 12 of the Law:

(i) the court may, at the request of any party, order the other party or a third party, including public entities, to disclosure evidence in their possession;

(ii) this request shall be substantiated with facts and means of proof that are reasonably available and sufficient to corroborate the plausibility of the claim for damages or the defence and shall indicate the facts that are to be proved, as well as identify as precisely and strictly as possible the means of proof or categories of means of proof whose disclosure is requested, on the basis of the facts on which it is based;

(iii) the court shall order the evidence disclosure if it considers it to be proportionate and relevant to the decision of the case, and refuses any requests that presuppose indiscriminate searches for information;

(iv) when determining the proportionality of the request for the evidence disclosure, the court shall weigh the legitimate interests of all parties and interested third parties, taking into account in particular:

a) the extent to which the damages claim or defence is founded on facts and available evidence which justify the request for documents disclosure;

b) the scope and costs of evidence disclosure, in particular for interested third parties, taking into account in particular the need to avoid indiscriminate searches for information of unlikely relevance to the parties; and

c) the existence of confidential information in the evidence disclosure requested, in particular as regards third parties, and the nature of the procedures adopted to protect such information;

(v) the interest in avoiding damages claims following an infringement of competition law does not constitute an interest justifying protection;

(vi) the court shall order the evidence disclosure containing confidential information when it considers it to be relevant to the damages claim, by adopting effective measures to protect it; and

(vii) the court shall not order the evidence disclosure without the possessor being given an opportunity to be heard.

Article 12 of the Law also applies in the case of accessing to evidence contained in a competition authority file (cf. Article 14 of the Law) and any competition authority may, on its own initiative, submit written observations to the court on the proportionality of requests for evidence disclosure included in its proceedings (Article 15(1) of the Law).

Additionally, according to Article 13 of the Law, pre-action disclosure is also available.

Lastly, failure to comply with court orders can lead to fines, penalties and may result in the reversal of the burden of proof, as stated in Article 18 of the Law.

Under Article 12(8) of the Law, the court cannot order the disclosure of information covered by legal professional privilege.

Under Article 14(5) of the Law, the court cannot order the presentation of evidence which includes (i) declarations for the purposes of exemption from or reduction of fines, and (ii) settlement proposals.

In Portugal, witnesses’ testimonials are subject to the principle of free assessment of evidence (Article 396 of the Portuguese Civil Code) and must have the mental capacity to testify (Article 495(1) of the Portuguese Civil Procedure Code).

Witnesses are required to testify if appointed, under penalty of fines or custody (Article 508 of the Portuguese Civil Procedure Code). Certain individuals, like close family members and those bound by professional secrecy, can refuse to testify (Article 497(1), (2) and (3) of the Portuguese Civil Procedure Code).

Witnesses usually testify in person or via teleconference and, in very exceptional cases, by written statement (Article 500 of the Portuguese Civil Procedure Code). They are subject to cross-examination (Article 516 of the Portuguese Civil Procedure Code).

Each party can nominate up to ten witnesses unless the court allows more (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, both parties and the judge may request expert evidence, when special knowledge is needed, as specified in Articles 388 of the Portuguese Civil Code and 467(1) of the Portuguese Civil Procedure Code.

Expert evidence can be provided by either one expert or a panel of three experts (Article 468 of the Portuguese Civil Procedure Code). In a panel, two experts are appointed by the parties, and the third is selected by agreement between the parties or by the judge.

Experts must prepare a written report before the trial, detailing their findings. This report can reflect agreement or disagreement among the experts (Article 484 of the Portuguese Civil Code). Experts may be required to attend the final hearing to clarify their report (Article 486 of the Portuguese Civil Procedure Code).

Parties can object to the report if it is unclear, contradictory, or insufficiently justified. They can also request a second expert, though this expert does not replace the first one (Articles 485 and 487 of the Portuguese Civil Code).

The report is evaluated according to the principle of free assessment of evidence (Article 389 of the Portuguese Civil Code).

Full compensation includes actual loss, loss of profit, and interest since the damages occurred until payment (Article 4 of the Law). On the contrary, exemplary and punitive damages are not available in Portugal.

Regarding the assessment of damages, in the particular case of cartels, it is presumed that they cause harm. The infringer can challenge this presumption (Article 9(1) of the Law).

In the cases where damages are not presumed, the claimant has to prove it. If calculating damages is impractical or overly difficult, the court can use a rough estimate to determine the amount (Article 9(2) of the Law).

The AdC can help the court in quantifying damages upon request. However, the AdC may choose not to assist if it provides a justification for this decision (Article 9(3) of the Law).

In turn, defendant can argue that the claimant passed on the damages resulting from anti-competitive practices to customers, which may reduce the actual loss claimed. Indirect purchasers can also claim damages due to the passing-on effect.

According to Article 3 (2) and (3) of the Law, entities that exercised decisive influence over the infringer during the infringement are also liable. There is a presumption of dominant influence if the entity holds 90% or more of the infringing company’s share capital.

Additionally, companies involved in joint anti-competitive behaviour are jointly and severally liable for the resulting harm (Article 5(1) of the Law), with certain exceptions specified in Article 5(2) of the Law:

• Liability Limitations – the SME is only liable to its direct and indirect purchasers and suppliers if:
1. its market share was below 5% at any time during the infringement; and
2. applying normal joint and several liability rules would endanger its economic viability and devalue its assets.
• Liability to Other Parties – a SME is only liable to other injured parties if full compensation cannot be obtained from other entities involved in the same infringement.

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:

• to its direct or indirect purchasers or providers; and
• to other injured parties only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law (Article 5(4) of the Law).

According to Article 5(5) of the Law, the right to recover a contribution from other infringer is limited to the extent of its relative liability for the damage caused by the infringement, presuming such liability to be equivalent to the average of its market share in the affected markets during its participation in the infringement, unless proven otherwise, in particular the role played by each co-infringer in the infringement. This applies to compensation paid to injured parties who are not direct or indirect purchasers or providers of any of the infringers (Article 5(6) of the Law).

However, the compensation to be paid as a contribution by an undertaking which was granted immunity from fines may not exceed the amount of damage it has caused to its own direct or indirect purchasers or providers (Article 5(7) of the Law).

Injunctive relief is available in Portugal. It is an urgent proceeding that should be decided on within a few weeks.

To obtain injunctive relief, the applicant must satisfy the following criteria:

• the applicant must credibly demonstrate an underlying substantive right (fumus bonus iuris);
• the underlying right must be threatened by possible harm caused by an action of the respondent;
• the applicant must demonstrate credibly that it would face an injustice which is not (or not easily) repairable if the injunctive relief is not ordered;
• there must be a need for urgent action in order to avoid the imminent and irreparable (or not easily repairable) harm (periculum in mora); and
• the court must balance the parties’ interests and deny the request if there is possibility that the injunctive relief inflicts more harm to the respondent than it prevents the applicant from incurring (Articles 362(1) and (2), 363, and 368(1) and (3) of the Portuguese Civil Procedure Code).

Injunctive relief can be sought while the main legal proceedings are ongoing, or the main action must be initiated within 30 days of a successful application (Article 373(1)(a) of the Portuguese Civil Procedure Code).

The injunctive relief may be obtained, if justified, without notice to the other parties (Article 366 of the Portuguese Civil Procedure Code).

The respondent can seek compensatory damages if the injunctive relief is granted but later found to be unjustified (Article 374(1) of the Portuguese Civil Procedure Code). The court may require the applicant to provide security to protect the respondent’s interests (Article 374(2) of the Portuguese Civil Procedure Code).

Applicants must provide a guarantee to cover damages if the injunction is later deemed unjustified. If the applicant loses the main case, they may be liable for damages and legal costs to the respondent, preventing misuse of the injunctive relief process.

If the trial of the substantive case fails, the injunctive relief expires (Article 373(1)(c) of the Portuguese Civil Procedure Code).

With particular relevance to the right to compensation claimed in this type of actions, the authors highlight the following.

• According to Article 391 of the Portuguese Civil Procedure Code, a creditor who has a justifiable fear of losing the patrimonial guarantee of his/her credit may request the distraint of the debtor’s assets. A distraint consists of a judicial seizure of assets, capable of anticipating the effects of the judgment to be handed down.
• If the creditor considers that there is a justifiable fear of loss, concealment or dissipation of the assets or documents, they can request that these be enlisted, in accordance with Article 403 of the Portuguese Civil Procedure Code. The enlisting consists of describing, evaluating and depositing the assets, with the aim of ensuring its permanence and conservation. Under the terms of Article 406 of the Portuguese Civil Procedure Code, a record is drawn up describing the assets in numbered sums, as in an inventory, stating the value set by the person in favour and certifying that the assets were handed over to the depositary or otherwise disposed of.

Alternative dispute resolution (ADR) methods are available in Portugal, but they are not legally mandated.

Under the terms of Article 2(s) of the Law, out-of-court dispute resolution is any mechanism that allows the parties to settle out-of-court the dispute concerning the compensation claim, namely mediation, arbitration, conciliation and transaction.

According to Article 11 of the Law, the out-of-court settlement of disputes entails the following.

• Suspension and termination of proceedings – if two or more parties take part in an out-of-court dispute resolution procedure in relation to a claim for damages, the proceedings are suspended in relation to those parties for a period not exceeding one year, without prejudice to the termination of the proceedings by arbitration agreement.
• Limitation of compensation claims – injured parties cannot claim in the court more than the damage suffered, adjusted by the liability of the infringer participating in the agreement. Nor can the injured party claim any more from the infringer which participated in the agreement, unless the co-infringers are unable to compensate it (this last point can be excluded in the agreement).
• No right of obtaining contribution – co-infringers who did not participate in the settlement have no right of obtaining contribution from the participant.
• Consideration of previous settlements – when determining the amount of the right of contribution that a co-infringer may obtain from any other co-infringer according to the relative liability of each of them for the damage caused by the infringement of competition law, the court shall take into account any damages paid by virtue of a previous out-of-court settlement in which the co-infringer from whom the amount is claimed participated.

In Portugal, litigation funding is permitted.

In the case of class actions to protect consumer interests, in particular, Article 10 of the Decree-Law states that when financed by a third party, the claimant must provide the court with a notarised copy of the financing agreement (see Article 10(1) of the Decree). This agreement must be clear, in Portuguese, and include specific elements:

• a financial summary listing the sources of funding used to support the representative action; and
• the various costs and expenses that will be borne by the third-party funder.

Whenever the financing agreement referred to in the previous paragraph is subject to amendments, additions or additional or ancillary agreements, the claimant shall submit the amended agreement to the court in its new version (see Article 10(2) of the Decree-Law).

According to Article 10(3) of the Decree-Law, the financing agreement must guarantee the independence of the claimant and the absence of conflicts of interest. Class actions funded by entities with competitors as defendants or those dependent on the funder are inadmissible (see Article 10(7) of the Decree-Law).

It is understood that the claimant is independent of the third-party funder if they are exclusively responsible for taking all decisions relating to the class action, with the guiding principle being the defence of the interests in question, including, in particular, the choice of legal representatives, the definition of the procedural strategy and also the decisions to bring, continue, withdraw, settle, appeal or not appeal and, in general, to carry out or not carry out any procedural act within the scope of the class action (see Article 10(4) of the Decree-Law).

According to Article 10(5) of the Decree-Law, the funder may not impose, impede or influence in any way the decisions referred to in the preceding paragraph, and any clauses to the contrary, in particular those requiring any authorisation or consultation with the third-party funder prior to the decision being taken or associating a disadvantageous consequence for the claimant with the taking of any such decision, shall be null and void.

The funding agreement must provide fair and proportionate compensation for the funder, reflecting the nature and risk of the case (see Article 11(6) of the Decree-Law).

Parties must pay court fees, namely, when submitting their case and defense. The court imposes costs on the losing party in its final decision (Article 527 of the Portuguese Civil Procedure Code).

Article 533(1) of the Portuguese Civil Procedure Code stipulates that the costs of the winning party shall be borne by the losing party, in proportion to its loss. According to Article 533(2), party costs include:

a) judicial fees paid;

b) the costs actually borne by the party;

c) the remuneration paid to the enforcement agent and the expenses incurred to that end; and

d) the lawyer’s fees and the expenses incurred.

In addition, Article 529(4) of the Portuguese Civil Procedure Code states that the winning party has the right to be compensated for the costs that each party incurred in the process, under the terms of the Regulamento das Custas Processuais (RCP).

According to Articles 25 and 26 of the RCP, the losing party has to reimburse:

• judicial fees paid by the winner;
• other charges incurred by the winner; and
• 50% of the sum of the judicial fees paid by both parties, to cover the winner’s lawyer expenses.

In class actions, claimants considered to be a person, foundation or association, exercising the right of popular action are exempt from costs, under Article 4(1) (b) of the Regulamento das Custas Processuais.

After a judgment, the prevailing party submits a detailed cost statement for court approval, which the losing party can contest.

In Portugal, there are two levels of ordinary appeals against the rulings of the TCRS: firstly, to the Lisbon Court of Appeal and, secondly, to the Supreme Court of Justice.

The final decision handed down by the TCRS can be appealed to the Lisbon Court of Appeal when the value of the claim is higher than EUR5,000 and the decision of the TCRS is unfavourable to the appealing party in an amount more than half of EUR5,000. This court reviews both factual and legal issues.

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 be unfavourable to the appealing party in an amount more than half of EUR30,000. 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).

On the other hand, it is not allowed to submit an appeal to the Supreme Court of Justice if the Lisbon Court of Appeal confirms the TCRS’s 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).

Regarding class actions, inclusively with the adoption of the Decree-Law, an increase in litigation is expected. Among the main innovations of the Decree-Law, the following stand out.

(i) The legitimacy of associations, foundations and local authorities to bring collective actions (Articles 5 and 6) increases the range of subjects that can bring this type of action.

(ii) It now regulates the possibility of third-party funding, stipulating, with a view to funding transparency, that claimants must make the funding agreement available to the court, and that the agreement must contain a financial summary listing the sources of funding used to support the class action, and guarantee the independence of the claimant and the absence of conflicts of interest (Article 10). In this way, it promotes access to the law and financial support for companies. This is the first regulation in Portugal on third-party funders.

(iii) Established an opt-out regime for cross-border actions (Article 12).

In relation to follow-on and standalone damages claims, decisions are also awaited from the higher courts, highlighting the Trucks Cartel cases.

Since 2019, when private enforcement claims arose on the basis of Directive 2014/104/EU and the Law, Portugal has seen a number of follow-on and standalone damages claims for competition infringements. Several of these claims have been supported by third-party funders, as well as by consumer defence associations.

As a result of this mass litigation, expectations are high for the clarification and consolidation of the case law of the national higher courts, especially in terms of interpretation and application of the Law regime.

Given the need for densification and clarification of the interpretation and application of the Law, at least until the consolidation of national case law by the higher courts, and taking into account the escalating growth of lawsuits based on competition infringements, it is estimated that there will be increasing use of preliminary rulings.