Answer ... In line with Article 101 of the Treaty on the Functioning of the European Union (TFEU), Article 9 of the Competition Act sets forth a general prohibition against “agreements between undertakings, concerted practices and decisions by associations of undertakings which have as their object or effect the prevention, distortion or restriction of competition in the domestic market, in whole or in part, and to a considerable extent”.
In addition, Article 75 on the rules applicable to immunity applications loosely defines ‘cartels’ as practices between two or more competitors prohibited by Article 9 of the Competition Act and, if applicable, Article 101 TFEU.
Answer ... Articles 9 and 75 of the Competition Act set out a non-exhaustive list of specific cartel offences, including the following:
- the fixing or coordination of purchase or sale prices or other trading conditions;
- the limiting or controlling of production, markets, technological development or investment;
- the imposition of production or sales quotas;
- the application of dissimilar conditions to equivalent transactions with other trading parties;
- market sharing, including concerted activities in auctions and public tenders; and
- restrictions on imports or exports.
In addition to this list, any other anti-competitive actions against competitors that restrict competition are also prohibited.
There are no sector-specific offences, as the Competition Act applies equally across all economic sectors.
Answer ... Cartels are considered administrative offences – that is, misdemeanours – and are therefore quasi-criminal offences. They are punishable with fines and other ancillary sanctions; no criminal sanctions are available.
In addition, parties to a cartel will be liable under the applicable civil legislation – that is, Law 23/2018, which transposed the EU Private Enforcement Directive.
Answer ... Yes. Pursuant to Article 2(2) of the Competition Act, any prohibited practices that take place within the Portuguese territory and/or that have or are liable to have an effect in the Portuguese territory are subject to the Competition Act, regardless of whether the companies involved are domestic or foreign, or whether they have a presence in Portugal.
Answer ... Yes. As mentioned in question 2.5, according to the effects doctrine, the Portuguese Competition Authority (PCA) has jurisdiction to prosecute any competition law infringements that have an effect in the Portuguese territory, regardless of whether the infringement was actually carried out in Portugal (eg, an infringing business practice that is carried out in a third country, but has an effect in the Portuguese territory, will fall under the scope of the Competition Act).
In addition, the European Commission and the PCA or the national courts (under the principles of comity) are competent to enforce Article 101 TFEU in relation to issues of trade between member states.
Answer ... Pursuant to Article 74(1)(b) of the Competition Act, the statute of limitations to prosecute cartel offences is five years, starting from the end of the infringement (although the limitation period for continued infringements begins to run only once the infringement has ended).
If the PCA imposes a sanction following a cartel investigation, the limitation period for enforcement thereof is also five years, starting from the date of adoption of the decision.
These limitation periods are subject to suspensions (eg, for judicial review) for a maximum period of three years; and to interruptions (eg, where the PCA acts during the course of an investigation), which resets the clock. However, the PCA’s procedure may be extended only to a maximum period of seven and a half years, and may be suspended only for a maximum period of three years, resulting in a total maximum delay of 10 and a half years.