Answer ... The primary statute governing cartels is Article 9 of the Competition Act (19/2012), which follows Article 101 of the Treaty on the Functioning of the European Union (TFEU).
Additional rules and guidance can be found in the bylaws of the Portuguese Competition Authority (PCA) (Decree-Law 125/2014), as well as in regulations and guidelines adopted by the PCA, including:
- the Explanatory Notice regarding Immunity from or the Reduction of a Fine;
- the Guidelines on the Methodology of Application of Fines; and
- the Guidelines on the Handling of Antitrust Proceedings.
Like other competition law infringements, cartels are considered administrative offences and not criminal offences, and are therefore punishable with fines and other ancillary sanctions. Enforcement is complemented on a subsidiary basis by the Code of Administrative Procedure (Decree-Law 442/91) and the Misdemeanours Regime (Decree-Law 433/82).
Judicial review of the PCA’s cartel enforcement decisions is governed by the Code of Administrative Courts Procedure (Law 15/2002).
The Portuguese leniency programme for competition law infringements is set out under Articles 75 to 82 of the Competition Act, as well as under Regulation 1/2013 (“The Procedures relating to obtaining immunity from a fine, or the reduction of a fine, under the provisions of Law 19/2012”).
Finally, the EU Private Damages Directive (2014/104) has been transposed into Portuguese law (Law 23/2018) and sets out the liability regime for damages due to competition law infringements.
Answer ... No. With regard to cartels, the PCA has jurisdiction over all economic activities in the private, public and cooperative sectors.
Answer ... The PCA – established in 2003 by Decree-Law 10/2003 – is a public entity and functions as the independent and autonomous authority responsible for enforcing cartel legislation. It has sanctioning, supervisory and regulatory powers in this regard. Within the PCA, the Anti-cartel Unit is dedicated to the investigation and detection of cartels.
The PCA benefits from statutory independence; administrative, financial and management autonomy; and organic, functional and technical independence.
National courts may also rule on the existence of cartels in the context of private enforcement.
For sector-specific activities that are subject to specific regulation, Articles 5(4), 34(4) and 35 of the Competition Act establish a general principle of cooperation between the PCA and sector regulators in the application of competition legislation, based on consultation mechanisms, whereby the PCA may obtain opinions from such regulators.
Answer ... The PCA has become increasingly active in the fight against cartels.
In general terms, there has been a dramatic increase in the number of dawn raids conducted in recent years. Since 2017, 22 investigations involving 56 facilities have been conducted in the following sectors:
- tourist river transport;
- driving education;
- distribution and retail;
- food industry associations and advertising associations;
- provision of healthcare services;
- waste management; and
- private surveillance firms.
This increase in activity has already seen results: in 2019 the PCA adopted a final decision in relation to an insurance cartel, fining six companies a total of €54 million.
It also issued three statements of objections against several companies active in the retail and drinks industries. The theory of harm pursued by the PCA here is a so-called ‘hub-and-spoke’ cartel. According to the PCA’s public statements on the matter, the three separate proceedings are part of a larger sectoral investigation which is expected to culminate in the adoption of other statements of objections under the same theory of harm.
Finally, the PCA has been continuously active in its enforcement activity, with a strong focus on the fight against cartels, which was once again included in its priorities for 2019.