Cartels 2024 Comparisons

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 cartels 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.

Role of the PCA

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.

Sanctions for Cartel Activity

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 2022, the PCA imposed a total amount of circa EUR480 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.

PCA Investigations

The PCA has initiated several investigations concerning suspected cartel activity in a hub-and-spoke modality; ie, indirect price co-ordination between competitors through a common supplier. Some of these investigations have already resulted in the first convictions in Portugal for hub-and-spoke practices, with the PCA imposing heavy fines. Just recently, in 2023, the PCA imposed fines regarding hub-and-spoke practices in one investigation in the food and distribution sector, with fines imposed totalling EUR16 million.

In addition to sanctioning hub-and-spoke practices, the PCA has recently opened proceedings concerning a concerted practice in public procurement for teleradiology services to hospitals, and an alleged cartel between two companies involving market sharing and price fixing in the procurement of EHV cables. Additionally, in 2023, the PCA sanctioned independent distributors in the food supplements and healthy foods market for resale price fixing. The PCA also sanctioned seven entities for participating in a public procurement cartel in the security and surveillance sector. Further, the PCA imposed a fine of EUR11.3 million on the Portuguese Professional Football League and 31 sports companies participating in the 2019/2020 edition of the First and Second League for having entered into a no-poach agreement.

EU and International Activity

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

PCA Awards

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

The PCA was nominated at the Global Competition Review Awards 2022 in the “Government Agency of the Year” category, and featured in the top 20 best worldwide antitrust agencies for the fifth year in a row by 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 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. However, a new amendment introduced a rule stating that infringement proceedings will be suspended for the period of time 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 particular 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.

Implementation of the TFEU and the ECN+ Directive

In this sense, if cartel conduct in a foreign state has an effect on 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.

The year 2022 saw a few changes to the regulatory panorama which are likely to affect competition regulation.

First and foremost, there were no significant changes in the composition of executive, legislative or judicial government authorities.

However, a recent change in the PCA’s internal bodies should be noted, with the appointment of a new chair and two new members to the PCA’s Board of Directors on 13 March 2023.

In a hearing before parliament, the new chair of the PCA Board of Directors stated that, in addition to seeking to ensure the correct application of competition law, the PCA will also focus on ensuring the correct implementation of the ECN+ Directive, the modernisation of forensic investigation techniques and the adjustment of the PCA’s decisions in the light of judicial decisions – in particular, those of the Competition Court.

It is expected that, where public enforcement is concerned, the PCA will provide an additional focus on investigating the anti-competitive uses of algorithms or artificial intelligence in the digital environment, and the practices of “crisis cartels” which have raised their prices under the cover of the pandemic or the rise in inflation due to the current macroeconomic context. However, the PCA is also expected to focus on some traditional competition sectors such as public procurement, given the fact that, in the wake of inflation, these practices are linked to corruption phenomena. Network sectors, such as telecommunications, energy and transportation, will also be among the PCA’s priorities, given the above-mentioned macroeconomic context.

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 on the basis of criteria of public interest. Pursuant to Article 7(2) of the Competition Act, in assessing whether to initiate proceedings, the PCA must take into account 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 becoming increasingly frequent. According to public information, in 2022 the number of dawn raids conducted by the PCA was slightly lower than the preceding year (which had been a record year): six dawn raids were conducted, which is a significant number in the context of the national market.

Scope of the PCA’s Powers

The PCA may conduct dawn raids and surprise visits at any undertaking’s premises, with or without prior notice, upon judicial search orders from the competent judicial authorities and within the specific conditions expressly stated by the underlying judicial search order.

Notably, the Portuguese Constitutional Court recently determined, in two separate rulings rendered in March and April 2023, that only a judge (Juiz de Instrução), and not the Public Prosecutor’s Office, may grant such a search order. These are important decisions that may impact, albeit indirectly, many ongoing cartel cases.

The Constitutional Court also ruled that emails are constitutionally protected as long as they are stored in a location accessible only to the recipient. The court held that seizing such electronic messages requires approval and authorisation by the Juiz de Instrução. As a result, the previous interpretation that allowed the Public Prosecutor’s Office to authorise email seizures was deemed illegal and invalid in these two cases.

These Constitutional Court decisions are very significant, given that abstract reviews of the unconstitutionality of a rule can be requested when the Constitutional Court deems it unconstitutional in specific instances.

In response, the Portuguese Competition Court decided to refer this matter to the Court of Justice to determine whether the seizure of emails carried out by the PCA, previously authorised by the Public Prosecutor’s office without involvement from the Juiz de Instrução is aligned with EU laws, including Article 7 of the Charter of Fundamental Rights of the European Union. The Court of Justice ruling on the matter is expected this year. Pending this decision, the related appeal cases are currently on hold, awaiting resolution of this crucial legal issue.

Where 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 may be found at the private premises of partners, members of the board of directors, employees or anyone who works with the undertaking or association of undertakings (not only homes but also “other locations”, such as vehicles), a search of such premises without prior notice may also be carried out by the PCA under a specific judicial search order from the competent judge.

The undertakings and other persons concerned have the right to be accompanied by a lawyer in any dawn raid proceeding or inquiry. The lawyers are entitled to exercise all their prerogatives granted by the law and lawyers’ statute without any limitation or constraint.

Within the limits of the specific judicial search order and the law, the PCA has the power to access any possible support of evidence, including computers, diaries and physical or digital document files, although it is debated whether this includes emails. 

All lawful means of evidence, including digital documents, when deemed relevant by the PCA for the purposes of the investigation, may be copied and seized and, significantly, the PCA can carry out the inspection of documents and select copies or extracts to seize at the PCA premises or any other designated premises and then return the seized objects when the search is over. A written seizure instrument (containing the identification of the sources of evidence and the documents seized) must be drawn up, signed and notified to the undertaking. The seizure of evidence is to be authorised, ordered or validated by the competent judicial authority. The PCA can seize relevant 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 specific prior judicial search order must be validated by the competent judicial authority within the following 72 hours.

The PCA’s decisions affecting statutory rights (including the constitutional rights of defence and due process) are subject to appeal and review by the competent courts. 

The PCA may also question legal representatives and employees of the company and other persons involved in the case. Any oral explanations given are to be written down in the minutes of the inspection along with a description of the other actions carried out by the PCA, and the undertaking concerned in the case, as well as their counsel, shall be duly notified.

When conducting its enquiries, the PCA must state the capacity in which the person is being questioned, whether as a witness or as a defendant. Defendants have privilege against self-incrimination and have the right to remain silent providing certain requirements are fulfilled, being able to refuse to answer in so far as this would amount to a confession. Witnesses must answer all questions truthfully unless such answer would also amount to self-incrimination. In both cases, they can ask to be summoned for a formal interrogation accompanied by a lawyer.

Legal representatives of companies, acting in that capacity, are required to provide objective information and documents requested, even if they are not required to incriminate the company. Any illicit refusal to co-operate and respond, as determined by the PCA in accordance with the law and upon the specific competent judicial authorisation, can render the offender liable to criminal consequences, including for the crime of aggravated disobedience.

Raids on lawyers’ offices, medical offices or auditors’/accountants’ offices and the seizure of any documentation or correspondence under client-attorney privilege can only be performed in the presence of the competent judge and under very strict conditions.

The seizure of documents at a credit institution’s premises covered by banking secrecy (even if they do not belong to the undertaking concerned) and at other privileged premises – such as hospitals, clinics, medical doctors’ premises – can occur where there are well-substantiated reasons for believing that such documents relate to an infringement and are of major importance for finding out the truth or evidence. Such seizures must be made by the competent judge, assisted where necessary by the police or by qualified staff of the PCA, who are bound by a duty of confidentiality regarding everything that is not of interest to the investigation. 

Dawn Raid Procedures

During a raid, special dawn raid procedures should be followed, if they are in place. In any case, some basic procedures must always be kept in mind: 

• liaise with the counsel immediately and observe their recommendations; 
• confirm the identification documents of the officials, the documents that authorise an inspection, and the scope and purpose of the inspection; 
• do not leave the officials alone, and assemble a team of employees to assist each PCA or EU official/investigation team, ideally including someone from the IT department; someone to bring the requested documents and make copies; another person (a “shadower”) to take notes of the questions asked, the answers given and by whom, and the terms used; in order to control the documents and information given, etc, and the legal counsel/external lawyer; 
• agree a procedure with the officials, in order to maintain control of what is happening and when; 
• make copies of the documents copied or analysed by the officials; 
• inform the company’s employees that a raid is taking place, and give instructions regarding co-operation, non-obstruction, non-destruction of documents and non-disclosure to third parties; 
• be objective, succinct and concise; 
• do not speak more than necessary or volunteer information or documents that have not been requested; and 
• protect documents covered by legal privilege. 

In the event of doubt, there should be a request for the disputed documents to be kept separate (eg, in a sealed envelope), for the resolution of such issues after the raid. Any oral explanations given are to be written down in the minutes of the inspection, along with a description of the other actions carried out by the PCA, with careful checking for accuracy.

During or after the inspection, the possibility of drafting a low-key press release should also be considered.

After the inspection, the legal counsel and all employees involved in the inspections should be comprehensively debriefed, all necessary internal communications should be prepared (eg, giving instructions not to interfere with any seals) and proper attention should be given to the public relations management of the situation.

Preparation and Prevention

The keywords for any undertaking are “prevention” and “compliance”. Accordingly, companies are strongly encouraged to engage in risk identification and assessment actions, not only to implement tailored internal competition awareness training and compliance programmes and guidelines, but also to instil competition compliance into the company’s culture and policy. Where possible, having special dawn raid procedures and specifically trained and designated internal teams is an advantage. Other important preventative tools include the identification of employees who are more likely to have contact with competitors, internal investigations and due diligence, mock dawn raids, and the implementation of reporting and monitoring mechanisms and compliance incentive programmes.

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.

Protection of Communications

Within the context of national investigations conducted by the PCA, the communications between an undertaking and its in-house counsel are granted the same protection as the communications between the undertaking and the external counsel; both are covered by legal privilege. 

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 covered by legal privilege. Upon a judicial search order from the competent judge (ie, the judge responsible for the procedural safeguards), the PCA can undertake searches of lawyers’ offices (as well as of medical doctors’ 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 a search of a lawyer’s offices (if the judge is not present, the search is null and void) and must previously have notified the president of the Bar Association, so that the president of the Bar Association (or their representative) may attend.

Officers and employees have the right to counsel and the company counsel may take on this role and participate in the interviews, including for advising purposes. The interviews are conducted by the PCA’s investigators and the respective written interviews instrument must be signed by the participants, including the counsel. Individuals are not typically required to obtain separate counsel, unless their positioning may conflict with the company’s interests. 

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.

Article 2 of the Competition Act expressly states that, under the limitations set forth by the international commitments of the Portuguese state, the Competition Act applies to all infringements that have, or are likely to have, an effect in Portugal. If the company that is liable for the infringement is not located in Portugal and/or the documents/evidence are located in other jurisdictions, it will also have a duty to answer to the PCA in the same way as any company that is located in Portugal.

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

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.

Failure to co-operate with the PCA or obstruction of the exercise of its investigatory powers (by wilful misconduct or by negligence) may result in the sanctioning of natural persons with a fine, the amount of which may not exceed 10 to 50 units of count. In 2023, one unit of count corresponds to EUR102.

Failure to supply information or supplying false, inaccurate or incomplete information in response to a request by the PCA in the exercise of its sanctioning or supervisory powers (by wilful misconduct or by negligence) is subject to a similar sanction.

The PCA must have due care for the legitimate interests of undertakings, associations of undertakings, or of other entities, relating to non-disclosure of their trade secrets. A time limit of not less than ten working days is given to the undertaking concerned to select the information that is deemed to be confidential from the information that has been collected. In the end, the PCA may or may not agree with the classification of the information as a trade secret and such decision may be subject to appeal. 

Notwithstanding the guarantee of the rights of defence, the PCA can demonstrate that there has been an infringement of the law using confidential information as evidence and the Lisbon Court of Appeal has even considered that confidential information should be made available to other concerned undertakings (and not only be given to attorneys or external economic advisers, as it is mostly consensual) in order to secure their right to defence and strictly under the terms necessary for such purposes. 

The process is, in principle, public. The PCA can motu proprio determine that a case will be subject to closed material procedure, should it consider that publicity would harm the investigation or the rights of the undertakings concerned (in this case, motu proprio or upon request). Nevertheless, all final decisions adopted in restrictive practices proceedings will be published on the PCA’s website, without prejudice to the safeguarding of business secrets and other items of information considered confidential.

In general, the parties concerned have the right to access the proceedings file, the right of defence according to the adversarial principle, the right to a hearing, the right to present a transaction proposal and the right to appeal against interlocutory and final decisions adopted by the PCA.

During the second stage of the investigation, the defendant is assured of the right to exercise its defence: it is given a “reasonable period” (not less than 30 working days) to reply to the SO and it may request that the PCA undertake additional evidentiary measures (eg, witness depositions) and to have its written submissions complemented by an oral hearing. 

The party concerned also has a right of appeal against any final or interlocutory decisions or against any interim measures implemented by the PCA to the Portuguese Competition, Regulation and Supervision Court (CRSC), a first-instance specialised court.

The Leniency Regime is included in Articles 75 to 82 of the Competition Act, the provisions of which are binding on the PCA and the courts. The criteria set out in the Competition Act to obtain immunity from, or the reduction of, a fine are 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).

Immunity From Fines

In order to obtain immunity from fines, the applicant must comply with certain conditions, which have been increased with the transposition of the ECN+ Directive: 

• they must be the first to inform the PCA of their participation in a cartel and provide sufficient information to enable the PCA to carry out searches and seizures or to detect a cartel, where the PCA did not previously have sufficient evidence;
• they must co-operate fully and continuously with the PCA during the investigation, granting the PCA all the information and evidence at their disposal and promptly responding to information requests;
• they must make managers, board members and employees available to the PCA for enquiries and make a reasonable effort to ask former managers, board members and employees to be available to the PCA for the same purpose;
• they must terminate their participation in the cartel from the moment they provide the PCA with information, except to the extent that it is reasonably necessary to maintain the effectiveness of the investigation; 
• they must not have revealed the existence or the intention to apply for immunity, except in the case of express authorisation from the PCA;
• they must not have coerced any of the other undertakings to participate in the cartel;
• they must not have previously adopted measures or engaged in acts of destruction, forging or dissimulation of information or evidence; and
• they must not have disclosed their intention to file the immunity request, or its commission, to another national competition authority, or to competition authorities of third countries.

The “first-in-the-door” applicant for the Leniency Programme can be granted a marker, either at their own request (properly grounded) or on the initiative of the PCA, provided that they have supplied a minimum of information (name and address, information relating to the participants in the cartel, products and/or services involved, the territory covered, an estimate of the duration and the nature of the cartel, any other application for leniency that the applicant has already submitted or may submit to other competition authorities relating to the cartel, and justification of the request for a marker), for the purposes of the application being considered submitted at the time of receipt of the request at the PCA headquarters.

With the marker, the applicant is given an additional period of not less than 15 days during which they may submit additional information and evidence. Failure to submit additional information will lead to refusal of the leniency application.

Reduction of Fines

Reduction of fines may be granted to undertakings or individuals who do not meet the criteria for full immunity but who provide the PCA with information and evidence on the cartel that adds significant value to the information already in the possession of the PCA.

An applicant for a fine reduction must meet almost all the conditions required for immunity, with the exception of the non-coercion of any of the other undertakings to participate in the cartel. Additionally, it must reveal the degree of its participation in the infringement. 

The Competition Act determines the reduction of the fine as follows:

• the first applicant fulfilling the fine reduction requirements is granted a 30–50% reduction;
• the second applicant fulfilling the fine reduction requirements is granted a 20–30% reduction; and
• subsequent applicants fulfilling the fine reduction requirements are granted a reduction of up to 20%.

If the application is submitted after the issuance of the SO, the percentages quoted above are reduced by half.

Assessment of Leniency Applications

The PCA will then have to take into account the order in which applications were submitted, assessing, for each application, the added value of the information and evidence provided. Although the notion of “significant added value” is not defined in the Competition Act, the Explanatory Notice provides some guidelines as to how it will be assessed by the PCA: 

• according to the information and evidence already in possession of the PCA; 
• its probative value, especially the extent to which the form, nature and level of detail of the information or evidence contributes to reinforcing the capacity of the PCA to prove the existence of the alleged cartel; and 
• the degree of corroboration from other sources.

Records with respect to granting leniency and/or immunity

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) and the electrical cables cartel (2023).

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

Interviews with company employees (and with any other person the PCA deems relevant to its findings) are expressly provided for by Article 18 of the Competition Act. Employees can answer directly or through a legal representative.

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 in order 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 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.

Portugal’s Co-operation Networks

The PCA is involved in several co-operation networks, including the European Competition Authorities Association, the International Competition Network, the Ibero-American Competition Network (Rede Ibero-Americana da Concorrência) and the Lusophone Competition Network (Rede Lusófona da Concorrência); it also co-operates with the Organisation for Economic Co-operation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD).

The PCA has similarly entered into co-operation agreements with the Mozambican Directorate-General of Commerce, the Brazilian Competition Policy System, the Turkish Competition Authority, the Angolan Competition Regulatory Authority and, more recently, with the Mozambican Competition Authority.

Sanctions 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.

As advanced in 5. Private Civil Litigation Involving Alleged Cartels, 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, nature and scope of such infringement, for the purpose of a damages claim.

A final condemnatory decision issued by an EU member state’s national competition authority establishes a refutable presumption of the existence, nature and scope of such infringement, for the purpose of a damages claim.

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.

Enforcement actions involving cartels tend to be brought against multiple parties in a single proceeding, under the single infringement principle, aiming to take action 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.

According to the principle of presumption of innocence, which applies to all administrative offences, the burden of proof of the existence of a cartel lies with the PCA or, in the case of an appeal of a PCA decision, with the court.

Under Portuguese law, a party that files a liability claim will bear the burden of proof in respect of the facts alleged as grounds for that claim and that are relevant according to the applicable legal framework (Article 342 of the Portuguese Civil Code, Decree-Law 47344/66, of 25 November 1966). Therefore, and as a general rule, the burden of proof lies with the claimant in private enforcement cases, unless the defendant invokes specific means of defence in respect of which the burden of proof lies with them. 

Final decisions issued by the PCA (or by the Portuguese courts, in respect of decisions of the same regulatory body) are considered binding on the court assessing the claim. Where an infringement of competition law has already been established by a final decision as mentioned above, the injured party only has to prove the causal link between that infringement and the damages suffered, and then quantify the damages. Indeed, the presumption that cartels cause damages also follows from Law 23/2018. If it is practically impossible or excessively difficult for the party to calculate the damages suffered, the court will carry out that calculation by means of an approximate estimate, having regard to the available evidence.

The PCA has the power to determine the relevant facts and to obtain the necessary evidence to support them, as long as this is not prohibited by law. Facts that have been proved by a non-appealable decision by the PCA are excluded from the general rules regarding burden of proof in follow-on actions for damages related to the condemned practices.

Evidence obtained in one proceeding comes under the general evidence acquirement principle, meaning that said evidence can be used by the PCA in parallel proceedings as long as the parties concerned are duly informed of that possibility prior to the information requests or investigatory actions being performed by the PCA.

According to Article 16 of Law 23/2018, there are restrictions on access to evidence from previous PCA processes, including that access may be granted only after a conclusive decision is made, and evidence cannot be provided in the context of a leniency process or under a proposal of transaction. Evidence that has been obtained exclusively through access to a PCA file may be used as evidence in actions for damages for infringement of competition law only by the person who obtained it or a person who is a successor in title to it, as well as the person who acquired the right to damages. 

Although cartels (and any other antitrust infringements) are not classified as criminal offences under the Portuguese competition legal framework, but rather as administrative offences, and the standard of proof can, in theory, be lighter than in criminal cases, the PCA must satisfy a demanding, globally consistent and strong level of evidence and must adopt a final decision imposing a sanction only when the moral certainty standard of proof is verified. Furthermore, the PCA and the courts reviewing the PCA’s decisions are bound by the in dubio pro reo principle, as it is a corollary of the principle of presumption of innocence.

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 assessments provided in expert evidence are generally regarded as beyond the ordinary evaluative capacity of the PCA or judge. However, the PCA or judge may reach conclusions that differ from the expert’s opinion, and any such deviation must be thoroughly justified.

Under Portuguese law, the protection given by the rules on legal professional privilege (which is protected by the constitution, the Criminal Code and the Statute of the Portuguese Bar Association) covers independent lawyers and in-house lawyers who are members of the Portuguese Bar, since they are subject to the same professional and ethical duties. The privilege of auditors is also now recognised.

In its March 2013 Guidelines on the handling of antitrust proceedings, the PCA expressly states that, in addition to lawyers registered with the Portuguese Bar, those registered with analogous entities in other countries will also benefit from similar protection. 

As a general rule, multiple public proceedings are not admissible based on the same facts – ie, for the same restrictive practices – involving the same parties.

Multiple follow-on actions for damages can be brought before courts by different aggrieved parties, based on the same facts, as class actions are a possibility but not an obligation. As described above, facts deemed to have been proved in a non-appealable decision by the PCA or court regarding restrictive practices are free from any burden of proof in these private enforcement actions. 

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.

Settlement Application Phases

The Portuguese Competition Act sets two phases to apply for settlements: during the course of 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, nature and scope of such infringement, for the purpose of a damages claim. The same applies, although in more limited terms (refutable 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.

Fines for cartel practices can amount to 10% of the total worldwide aggregated turnover of each participating undertaking, or, in the case of associations of undertakings, of the aggregate turnover of its members who operate in the affected market (who are jointly and severally liable for the fine under certain conditions). In the case of natural persons, this can amount to 10% of their gross annual income.

There are no specific effective compliance programmes promoted or imposed by the PCA. Notwithstanding this, companies are becoming more aware of the necessity of implementing internal competition compliance programmes to comply with the law and promote general awareness of competition law-related issues.

There is no mandatory consumer redress in Portuguese legislation; only possible voluntary claims for damages.

As advanced in 5.2 Collective Action, with regard to class actions, Portugal has an opt-out model (which is brought on behalf of indeterminate persons, while the opt-in model requires express consent) – an action for the protection of diffuse interests (ação popular).

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 in order 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 on the basis of 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 has 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.

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 No 114/2023 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, of 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 with regard to 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 that has become res judicata, and this decision serves as an irrefutable presumption of the infringement’s existence, nature, and scope, for the purposes of a damages claims); 
• 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.

See also 4.3 Collateral Effects of Establishing Liability/Responsibility.

Before Law 23/2018 there were few cases of this type of action in Portugal, and the success rate was very low (around seven compensations have applied 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.

In light of 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 has been assuming an increasingly important role in the investigation and sanctioning of cartels. 

In 2023, the PCA’s activity in the area of merger control saw a significant increase compared to the previous year, marked by a rise in gun jumping investigations.

For 2024, the PCA prioritises enhancing its capacity to detect and investigate cartels, promoting compliance with competition law across all economic sectors. The authority will focus on identifying mergers that should have been notified to the PCA but were not, or those implemented without a decision (gun jumping). Additionally, the PCA is committed to increasing the scrutiny of potential abuses of dominant positions, thereby protecting competitive dynamics and consumer welfare.

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 2024; 
• 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.