Portugal: Legislative Changes 3rd Quarter 2017

Last Updated: 19 June 2018
Article by Ricardo Oliveira and Sara Estima Martins

Most Popular Article in Portugal, June 2018

IN FOCUS:

Portugal

I. Portuguese Competition Authority

In 2017, the Portuguese Competition Authority has already carried out dawn raids at 35 premises and 36 companies

Saiba mais aqui

Portuguese Competition Authority carries out dawn raids at railway maintenance companies

Saiba mais aqui

Publication of a draft law reinforcing private enforcement in Portuguese Competition Law

Saiba mais aqui

Portuguese Competition Authority fines Portuguese Driving Schools Association for fixing minimum prices

Saiba mais aqui

The Portuguese Association of specialised consumer credit providers offers commitments to the Portuguese Competition Authority to eliminate the restrictive potential of the information exchange system in the market for specialised credit

Saiba mais aqui

Portuguese Competition Authority opposes the acquisition by SIBS of UNICRE's assets

Saiba mais aqui

EUROPEAN UNION

  1. Courts

EU Court of Justice sets aside the judgment of the General Court which had upheld the fine of €1.06 billion imposed on Intel by the Commission for abuse of dominant position

Saiba mais aqui

Advocate General Wahl issues his opinion on the Coty case on the sale of luxury products through online third-party platforms

Saiba mais aqui

Abuses of dominant position and "excessive pricing": EU Court of Justice rules on the rates charged by collective copyright management entities

Saiba mais aqui

Ireland faces the EU Court of Justice over failure to recover €13 billion in alleged state aid in the Apple case

Saiba mais aqui

  1. European Commission

European commission considers that Luxembourg granted tax advantages to Amazon of approximately €250 million that are incompatible with EU state aid rules

Saiba mais aqui

Scania fined over €880 million for participating in trucks cartel

Saiba mais aqui

European Commission sends Statement of Objections to Teva on "pay for delay" pharma agreement

Saiba mais aqui

European Commission fines three car lighting system producers €27 million in cart l settlement

Saiba mais aqui

PORTUGAL

I. Portuguese Competition Authority

In 2017, the Portuguese Competition Authority has already carried out dawn raids at 35 premises and 36 companies

According to the Portuguese Competition Authority (PCA) press releases, since the beginning of the year, the PCA has already conducted dawn raids at 35 premises and 36 companies, in the transportation, driving schools, retail, insurance and railway maintenance sectors.

These inspections are a means to obtain evidence of anticompetitive practices, which may lead to the imposition of fines of up to 10% of the overall annual turnover of the company involved and to sanctions being imposed on the managers and directors, of up to 10% of their annual salary.

Portuguese Competition Authority carries out dawn raids at railway maintenance companies

In July of this year, the Portuguese Competition Authority (PCA) carried out dawn raids at seven premises of nine companies located in Lisbon and Oporto, following suspicions of a cartel in the railway maintenance sector.

According to the PCA press release, the suspicions resulted from a complaint filed in the context of the "Fighting Bid-Rigging in Public Procurement" campaign that the PCA has been carrying out since 2016, with contracting authorities and supervision entities.

Publication of a draft law reinforcing private enforcement in Portuguese Competition Law

Draft law no. 599/XIII was published in the official Portuguese gazette Diário da República on 3 August 2017. This draft law reinforces the enforcement of competition law and regulates the possibility of having civil claim for damages based on violations of competition law – "private enforcement".

The draft law seeks to make it easier for anyone that suffers losses resulting from competition Law violations to obtain compensation, and to provide a link between the public and private enforcement of competition law. It enacts Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 and was preceded by another draft and a period of public consultation organised by the PCA.

Portuguese Competition Authority fines Portuguese Driving Schools Association for fixing minimum prices

The Portuguese Competition Authority (PCA) fined the Portuguese Driving School Association (APEC) for anticompetitive practices by fixing the minimum price for obtaining a driving licence. The conduct harmed competition within the driving schools market in the Greater Lisbon and Setubal areas.

The President of the Association was also found guilty of an infringement because he was aware of the practice and took no action to prevent it or put an end to it.

The fine amounted to €413,776.71.

The Portuguese Association of specialised consumer credit providers offers commitments to the Portuguese Competition Authority to eliminate the restrictive potential of the information exchange system in the market for specialised credit

The Portuguese Association of Specialised Consumer Credit Providers (ASFAC) offered a set of commitments, as an answer to the concerns of the PCA concerning the restrictive potential of the information exchange system in the market for specialised credit.

On 23 April 2015, the PCA opened proceedings against ASFAC and 37 of its associate members, because of indications of infringements of competition rules, specifically the existence of a system for the exchange of sensitive strategic information organised by ASFAC and its associated companies.

The highlights among the set of commitments offered by ASFAC, which will be monitored by the PCA, are i) strengthening of requirements of age of the data exchanged between the associated companies, reducing its strategic value and, hence, its restrictive potential; ii) the provision of full access to such data not only to the associated companies, but also to non-member companies which request it on the basis of their interest in preparing for entry into the market.

Portuguese Competition Authority opposes the acquisition by SIBS of UNICRE's assets

The Portuguese Competition Authority (PCA) issued a draft decision prohibiting the acquisition of UNICRE's payment card acceptance business unit by SIBS. According to the PCA, this acquisition would reinforce market entry barriers, harm market competition and it could, ultimately, lead to a monopoly in the Portuguese payment system.

Throughout the process, SIBS had presented a set of commitments. However, the PCA considered them insufficient and inadequate.

After the draft decision prohibiting the made an application, SIBS filed a request to withdraw from the planned operation, following which the PCA declared the dismissal of proceedings on 20 July 2017.

EUROPEAN UNION

I. Courts

EU Court of Justice sets aside the judgment of the General Court which had upheld the fine of €1.06 billion imposed on Intel by the Commission for abuse of dominant position

By a judgment of 6 September, in the Intel case, the European Court of Justice (ECJ) set aside the judgment of the General Court (GC) which had upheld the fine of €1.06 billion imposed on Intel by the European Commission.

The European Commission (EC) had imposed a fine of €1.06 billion on Intel for abuse of a dominant position in the central processing unit (CPU) market. The company gave rebates to four of the major computer manufacturers on condition that they purchased all, or almost all, of their x86 processors from Intel. Intel had also made payments to a European distributor of microelectronic devices, in exchange for which it would exclusively sell computers that incorporated the above mentioned processor. According to the EC, Intel had thus drawn up a strategy that sought to eliminate its only competitor, Advanced Micro Devices.

The ECJ set aside the decision of the GC, on the basis that the latter needed to consider the effects that of exclusivity rebates offered by companies with a dominant market position, before holding them to be restrictive. The case has now been sent back to the GC, so that it can examine whether the rebates in question are capable of restricting competition.

The judgment comes in the wake of a long discussion regarding abusive practices and lays down a clear vision of the need to analyse the effects, including from an economic point of view, of the practices that companies in a dominant position engage in.

Advocate General Wahl issues his opinion on the Coty case on the sale of luxury products through online third-party platforms

Coty Germany wants to prohibit Parfümerie Akzente, an authorised retailer, from selling its products on the Amazon platform.

In the context of the dispute, the Superior Regional Court of Frankfurt-am-Main has made a reference for a preliminary ruling to the European Court of Justice (ECJ), asking whether the prohibition would be compatible with EU competition law.

On 26 July 2017, Advocate General Nils Wahl (AG) presented his conclusions, according to which he argues that distribution systems that seek to preserve the prestige of "luxury products" may escape the application of the prohibition on anticompetitive agreements, provided they meet three conditions: the prohibition (i) is driven by the nature of the product; (ii) be determined uniformly and applied indistinctively; and (iii) does not exceed what is necessary to achieve its aim.

The ECJ must now give judgment on the matter. Given that the question was raised in the context of a preliminary ruling, that the final decision will be left to the German courts.

The ECJ now has the chance to clarify the scope of previous decisions on the matter, namely the Pierre Fabre judgment, by taking a position on the scope of the restriction of online sales that may be legitimately applied by luxury product brands on their distributors.

Abuses of dominant position and "excessive pricing": EU Court of Justice rules on the rates charged by collective copyright management entities

On 14 September 2017, in the context of a preliminary ruling presented by the Supreme Court of Latvia, the European Court of Justice (ECJ) set out the criteria that must be taken into account when analysing whether a copyright management entity is applying unfair prices.

The ECJ has clarified the conditions in which it would be appropriate to compare the rates of a certain copyright management entity with the rates applicable in other Member States. The Court emphasised that the difference between the compared rates must be taken as considerable if it is consistent and persistent.

Any such difference will constitute an indication that there may be an abuse of dominant position. If that happens, it is incumbent on the copyright management entity to demonstrate that its prices are fair and based on objective criteria taking into account the managing expenses and the remuneration paid to copyright holders.

Exploitative pricing abuses by dominant undertakings have been publicly condemned by Commissioner Margrethe Vestager, as shown in the Gazprom case.

Ireland faces the EU Court of Justice over failure to recover €13 billion in alleged state aid in the Apple case

The European Commission (EC) referred Ireland to the European Court of Justice (ECJ), insofar as Ireland has not implemented the order to recover €13 billion allegedly given as state aid from Apple.

The EC adopted a decision on August 2016, ordering Ireland to recover the amount in question from Apple, which resulted from the concession of tax benefits allegedly incompatible with competition rules on state aid.

In the meantime, the Irish State has challenged this EC decision by bringing an action for annulment. However, bringing this action for annulment against the EC this does not suspend the obligation on the Member State to recover the state aid held to be illegal.

II. European Commission

European commission considers that Luxembourg granted tax advantages to Amazon of approximately €250 million that are incompatible with EU state aid rules

According to the European Commission (EC), Luxembourg has given Amazon illegal tax benefits worth around €250 million, by adopting a tax measure that allowed the company to reduce its taxable profits considerably.

The EC held that this decision allowed a transfer of the vast majority of the profits from one company of the group subject to taxation in Luxembourg to one that was not subject to such taxation, Amazon Europe Holding Technologies. According to the EC, the decision has allowed that Amazon was subject to a lower payment than other companies under to the same tax rules. It went on to conclude that there was a selective economical advantage.

Particularly since 2013, the EC has been investigating tax practices of the different Member States.

Scania fined over €880 million for participating in trucks cartel

The European Commission (EC) has fined Scania approximately €880 million for participating in a cartel, together with five other heavy truck manufacturers, MAN, DAF, Daimler, Iveco and Volvo/Renault. In July 2016, the latter four companies had admitted their involvement in the cartel and reached a settlement resulting in record high fines of €2.93 billion.

The companies were found to have engaged in price coordination practices and passing on to clients of the of the costs arising from compliance with stricter environmental rules.

European Commission sends Statement of Objections to Teva on "pay for delay" pharma agreement

Teva and Cephalon concluded an agreement under which the former would commit not to market a cheaper generic version of the drug for sleep disorders, modafinil, owned by latter.

In its Statement of Objections, the European Commission (EC) informed Teva that the practice in question constitutes a violation of competition rules, given that the amounts transferred from Cephalon to Teva amount to a pay-for-delay agreement, which creates obstacles to competition regarding the production and marketing of the product.

This decision is in line with other decisions of the Commission – Lundbeck (2013), Johnson & Johnson (2013), Servier (2014).

European Commission fines three car lighting system producers €27 million in cartel settlement

The European Commission (EC) has fined three car lighting system producers – Automotive Lighting, Hella and Valeo – for participating in an automotive lighting cartel by fixing prices and other commercial conditions in the supply of car lighting systems.

Automotive Lighting and Hella were ordered to pay a fine totalling €26 744 million.

The leniency policy is a crucial instrument in the detection of cartels. It allows the company involved in the anticompetitive practice to obtain immunity and that was what happened with Valeo, which presented a leniency request and, as a result, it was exempt from paying any fine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions