Answer ... The leniency programme is set out in:
- Articles 75 to 82 of the Competition Act (which set out the criteria for leniency);
- Regulation 1/2013 (which sets out the procedures for leniency); and
- the Portuguese Competition Authority’s (PCA) Explanatory Notice on the Substantive and Procedural Rules for Immunity.
Leniency may be granted to both applicant companies and individuals (see question 5.5).
There are two types of leniency categories: (full) immunity and fine reduction.
In order to be granted immunity, the applicant must:
- be the first to inform the PCA of its participation in a cartel; and
- provide information and evidence enabling the PCA either to carry out searches and seizures or to detect an infringement where it did not previously have sufficient evidence (see questions 5.2 and 5.3).
Applicants that do not meet the immunity criteria, but nevertheless provide information and evidence on an infringement that has significant added value, may be granted a fine reduction. While the Competition Act does not define ‘significant added value’, it does set out the criteria for assessment (as per the explanatory guidelines), as follows:
- the order in which applications are submitted;
- the information and evidence already in the possession of the PCA;
- the value of the information; and
- the fact that further corroboration might not be necessary.
Answer ... As under most leniency regimes, full immunity is available only to the first company that provides information and evidence which enables the Competition Authority to:
- effectively ground a request for a warrant to carry out dawn raids; or
- detect a cartel infringement.
In addition, the ‘first mover’ must:
- fully and continuously cooperate with the PCA in the investigation;
- cease to be a party to the cartel; and
- not have coerced any other undertakings to participate in the infringement.
The EU Private Damages Directive – and the Portuguese law transposing it – grant further protection to leniency applicants by establishing that third parties may not use leniency applications and settlement proposals as evidence, except for revoked settlements.
For subsequent applicants, a fine reduction is available in accordance with the following levels:
- between 30% and 50% for the first company providing information and evidence of significant added value;
- between 20% and 30% for the second company providing information and evidence of significant added value; and
- up to 20% for any subsequent companies providing information and evidence of significant added value.
If the application is submitted after the issuance of the statement of objections, these percentages are reduced by half.
Answer ... Once the applicant has submitted a leniency application (informing the PCA of the infringement), it is given a period of not less than 15 days in which to submit additional information and evidence (a different deadline may be set by the PCA if so justified for reasons of cooperation with other competition authorities within the European Union, pursuant to EU Regulation 1/2003).
Article 4 of Regulation 1/2013 states that the first applicant may be granted a marker, either at its own request (properly grounded) or on the initiative of the PCA, provided that it has supplied minimum information (in line with the European Competition Network Model) including:
- its name and address;
- information relating to the participants in the cartel;
- information on any past or possible future leniency applications to any other competition authorities in relation to the alleged cartel;
- information on the products and/or services involved, the territory covered and an estimate of the duration and nature of the cartel; and
- any other application for leniency that the applicant has already submitted or may submit to other competition authorities relating to the cartel.
Failure to complete the initial request will lead to refusal of the leniency application. Any documents that were delivered will be returned to the applicant or, upon express request by the latter, retained by the PCA and assessed under the cooperation criteria, to be taken into account when setting the amount of the fine.
Answer ... To be granted leniency, the company or individual applicant must:
- cooperate fully and continuously with the PCA during the investigation;
- terminate participation in the cartel, except to the extent that is reasonably necessary to maintain the effectiveness of the investigation; and
- not have coerced any other undertakings to participate in the cartel.
The Competition Act sets out detailed rules on confidentiality and access documents:
- The PCA is obliged classify the leniency application as well as all documents and information submitted as confidential.
- The defendant is granted access to the leniency application and related documents for the purposes of preparing its response to the statement of objections (although copies are permitted only where authorised by the applicant).
- Third parties are granted access to the leniency application only upon authorisation by the leniency applicant.
- In oral leniency applications, the applicant is not given access to copies of its statements and third parties shall be prevented from accessing such information and documentation.
Supporting documents and information may be accessed by third parties by court order, despite potentially benefiting from a special disclosure regime if they were specifically prepared for the purposes of the enforcement procedure once the procedure has been concluded by the PCA.
Answer ... According to Article 79 of the Competition Act, the leniency programme is open to individuals who are liable for competition law infringements in similar terms to those available for companies, and follows a similar procedure, as long as those individuals cooperate fully and continuously with the PCA. Such individuals include:
- members of the board of directors or supervisory board of legal persons and equivalent entities; and
- individuals who are responsible for the direction or supervision of areas of activity within a company or equivalent legal entity where an infringement has occurred.
Individuals may apply for leniency on behalf of the company or individually (for the latter, the immunity or fine reduction will only benefit the individual). Individuals need not formally submit or adhere to a company’s leniency application, as they may benefit from the company’s application provided that they fully cooperate with the PCA.
In addition to the leniency programme, the PCA recently launched a complaint portal, through which individuals (eg, employees, consumers, competitors or third parties) may lodge a complaint with the PCA implicating other individuals or companies in a suspected cartel. These complaints may also be made anonymously.
Answer ... A failure by the leniency applicant to complete the initial request made by the PCA, or to fulfil the legal conditions for leniency to be granted, will lead to refusal of the leniency application.
In addition, and once leniency has been granted, if the PCA considers that the applicant is no longer cooperating with the investigation, the leniency status may be withdrawn.