Merger control
2024 saw one prohibition decision and an increase in acceptance of behavioural remedies
Telecoms merger (Vodafone/ Nowo) prohibited despite marginal presence of target (shares of ~2/3%) – prohibition decision currently under appeal. Three instances of behavioural remedies being required to clear deals based on FRAND/ fairness principles – PCA likely to continue greater scrutiny of transactions based on more novel theories of harm.
2025 merger control priorities: focus on ancillary restraints and innovation framework
The PCA 2025 priorities state that the PCA will give special focus to ancillary restraints that form part of notified transactions (non-competes) likely to assess whether these go beyond permitted protections. The PCA will also assess whether the current merger regime is adequate for markets characterised by high levels of innovation.
Market share thresholds likely basis for EC referrals; Acqui-hires likely to result in future notifications
2025 saw over 80 notifications (material increase in notifications vs. pre-2023 data). Market share thresholds could be used as basis for future referrals to EC post-Ilumina/Grail as PCA interprets these thresholds broadly. Novel theories to assert jurisdiction also likely – notification of acqui-hires very likely in short to medium-term as PCA considers these reportable where thresholds met.
Gun-jumping remains an important part PCA's enforcement agenda despite recent significant loss in court
Over 80% of the PCA's gun-jumping enforcement activity has taken place in the last four years (PCA adopted gun-jumping guidelines in late 2022). Recent court loss establishes that under PCA cannot adopt EU law concepts to broaden scope of domestic rules on gunjumping. Record fine of €2.5 million reduced by 95%.
Public enforcement
Enforcement trends
The new board has been in place for approx. 1.5 years. Enforcement has slowed down, mainly due to procedural losses in court (see below). Indications that PCA wants to continue to be an active NCA and to pursue novel and trending issues such as no-poach conduct and AI.
AG Opinion in warrants litigation music to PCA's ears
The Constitutional Court initially held PCA's practice of obtaining warrants from the public prosecutor was unconstitutional. Resulting litigation resulted in preliminary references that raised the issue from an EU law perspective. AG Medina Opinion: EU law does not bar Constitutional Court judgments but AG suggests finding a way under national law to preserve 10 years of enforcement/fines – outcome to be decided in 2025.
Further indications that PCA will dedicate more resources to abuse of dominance enforcement
PCA has publicly stated that it intends to continue to dedicate more resources to abuse of dominance enforcement in 2025. Fine of €14 million on domestic payment processor (SIBS) in March 2024 was the first PCA abuse of dominance fine for several years
Next 12 months likely to see greater public enforcement
The PCA continues to be an active antitrust enforcer, and it has several pipeline leniency cases. PCA had indicated that in its 2025 priorities that it will incorporate AI in its detection toolkit and that it is also seeking to streamline internal procedures to become more agile in identifying restrictive practices (horizontal and vertical).
Private enforcement
Exponential growth in private enforcement as of 2020 – 2024 saw emergence of more cases/ claimants
2020 was a turning point in private enforcement in Portugal for two main reasons: (i) the emergence of competition class actions and (ii) greater litigation of follow-on claims resulting from PCA public enforcement. 2024 saw more cases, most of which based on PCA enforcement decisions (banks cartel and hub and spoke cases) as well as new claimant organizations.
No first instance decisions to date – likely developments in 2025
There has yet been a first instance decision in any of the (many) cases brought to date. However, 2025 is likely to bring developments, as procedural and other threshold issues (e.g., extent of discovery) begin to be resolved by the courts. Developments in other jurisdictions likely to also play a role in the development of the regime (e.g., settlements in multi-jurisdictional matters).
Opt-out regime will continue to be attractive for class actions
Portugal will continue to be an attractive jurisdiction for plaintiffs because (i) anyone can bring a class action and the general rule is that class actions are opt-out; (ii) there is no separate class certification stage; (iii) the costs associated to bringing class actions are low; and (iv) Portugal is a one-shot jurisdiction – all procedural and substantive defences need to be made (very) early, putting defendants on the back foot.
Trucks litigation represents most follow-on cases thus far – more litigation to come
To date, courts have recognized the existence of an overcharge, but at levels often materially lower than alleged by claimants. Initial judgments show discomfort in dealing with detailed economic evidence and broad use of principle of effectiveness to justify use of presumptions of causation and damage. Some first instance reversals by Court of Appeal – first judgment from Supreme Court on threshold issues likely in 2025.
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