Answer ... A company faced with a cartel investigation should swiftly seek specialised legal assistance. All communications concerning the investigation should be made in the context of attorney-client privilege, so that they can benefit from legal privilege.
The company should also immediately conduct a general internal audit to understand its liability exposure, both with regard to the issues/business areas under investigation by the PCA, and to any other business area, because once the company is under the Authority’s “radar”, it will have to be particularly cautious and should cease any potential illegal business practices. Furthermore, the company should immediately schedule a meeting with all key employees which may be related to the investigation to ensure a consistent approach within the company. Given the high profile nature of cartel cases in the media, the company should also be promptly prepared (e.g. with a prepared press release) to react to any news.
These actions should be taken in the shortest timeframe possible, as the company will have to assess whether it may be advisable to apply for leniency. This issue is surely one of the most relevant pitfalls in cartel cases, as once companies become aware of the Authority’s investigation, there usually is a “leniency race”.
In addition, leniency applications should be carefully considered in terms of the company’s long-term strategy, because the company will be giving up future appeals of the PCA’s decision and will open the door for private enforcement (even though leniency statements are protected under the Portuguese private enforcement regime).
Both the company and its lawyers should be made aware of the scope and purpose of the Portuguese Competition Authority’s (PCA) investigation and understand the limits of its authority. The company should cooperate wherever possible, unless exceptional circumstances apply.
It is also recommended that companies request an informal meeting with the PCA, to better understand certain issues under investigation and open a dialogue with the PCA. These informal meetings may prove particularly important in cases where the company only becomes aware of the proceedings at a later stage (e.g. there were no dawn raids) and where the proceedings are subject to judicial proceedings.