I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
There is some empirical data indicating that private enforcement in Portugal has already been a reality for some time, with a sound number of precedents, gaining in significance. Two major proceedings of note involve follow-on cases.2
The first case relates to the Portuguese Competition Authority’s (PCA) 2009 decision that Portugal Telecom (PT) had abused its dominant position in the wholesale and retail broadband access markets through a margin squeeze and a discriminatory rebate policy. Following that decision, NOS (PT’s major competitor) launched a damages action with the Lisbon Judicial Court in 2011.3 In November 2016, the Court handed down its ruling, dismissing the case on the grounds that NOS had not sufficiently established the infringement. Nevertheless, this is a novel case in the Portuguese private enforcement landscape due to the infringement involved – margin squeeze – and also due to the Court’s extensive reasoning and proximity to the CJEU jurisprudence.
The second case is, however, still pending before the Portuguese courts. It involves Sport TV, a Portuguese sports-oriented premium cable and satellite television network operating in the market for premium pay-TV sports channels, which was found by the PCA to have abused its dominant position for several years by having imposed discriminatory conditions on operators, and concurrently having limited development and investment in the market. Following the decision, three separate damages actions were filed with the court, one of which is a class action, and representing the first of its kind in competition matters in Portugal.4
With Sport TV’s case pending, there are no clear-cut5 awards of damages on the grounds of competition law infringements to date.6 There are, nevertheless, already many general private enforcement precedents (even if competition law is typically only one of the legal angles in question) and the number is consistently increasing.7 In most cases, the competition rules were brought into litigation as a means of defence; most of the precedents have a vertical restraints nature;8 and often the validity of agreements or of particular clauses thereof is the leitmotif to call in competition law.
II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
Portugal is currently in the process of transposing Directive 104/2014, the PCA having been mandated to draft a legislative proposal, which has already been submitted to the government.
In the absence of the new law transposing Directive 104/2014, there is still no specific Portuguese legislation with regard to actions for damages arising from a breach of competition rules. The legislative framework for private antitrust enforcement in Portugal includes, besides the substantive rules on competition (laid down in the Portuguese Competition Law (PCL, approved by Law No. 19/2010, of 8 May)), the general rules on civil liability provided for in the Civil Code (CC)9 and the procedural rules of the Code of Civil Procedure (CCP).10
Private actions may be brought on the basis of an infringement either of the PCL, or of Article 101 or 102 of the Treaty on the Functioning of the European Union.
An infringement of competition rules may lead to a civil action based either on the request for compensation for damages or on the request for the declaration of nullity of an agreement or contractual clause deemed anticompetitive. Preliminary or definitive judicial declarations that a particular conduct or agreement is anticompetitive may also be requested. In any event, civil courts will have jurisdiction.11
The substantive law regarding actions for damages is set out in the CC, namely Articles 483 et seq. (regarding the rules on liability for illicit acts) and 562 (on the calculation of awards of damages). In a claim for damages, the plaintiff will have to prove12 (1) the defendant’s unlawful conduct including fault or negligence; (2) the extent of the damage suffered; and (3) the causal link between the conduct and the damage. The burden of proof lies with the plaintiff and the burden of disproving the plaintiff’s allegation lies with the defendant.13 The judge’s decision is based on the evidence produced and, when in doubt, is decided against the party who bears the burden of proof.14
Regarding limitation periods, there is currently a three-year time limit to bring an action for damages.15 The time limit begins when the plaintiff becomes aware of the alleged right to a claim, regardless of having knowledge of the identity of the person liable or of the exact amount of harm suffered. However, following the PCA’s legislative proposal, this time limit is likely to be changed to five years (i.e., adopting the minimum standard of Directive 104/2014) and will begin only after the infringement has ended, when it is reasonable to presume that the plaintiff became cumulatively aware of (1) the behaviour which amounted to a competition law infringement; (2) the identity of the offender; and (3) the fact that the infringement caused damage.16 On the other hand, there is a 20-year absolute time limit to bring an action for damages (e.g., contractual damages), irrespective of the acknowledgment of the right to a claim, starting from the date upon which the damage took place.17
The declaration of nullity of an agreement for breach of competition law is admissible according to Articles 280 and 294 of the CC and Article 9(2) of the PCL. The declaration of nullity will result in the return of what each party has provided to the other in the context of the invalid agreement, or the corresponding amount if such return is not possible.18
The applicable procedural rules for actions for damages as well as a declaration of nullity of an agreement or contractual clause are laid out in the CCP.
Currently, in the absence of a specialised court for private competition litigation, the competence to decide such matters lies with the judicial courts. For actions relating to contractual issues, the court with jurisdiction is located at the place where the defendant is domiciled, and in cases relating to actions for damages, the court with jurisdiction is located where the infringement of competition rules occurred.19 Decisions of the judicial courts are reviewed by the relevant court of appeals, and decisions of the court of appeals can be reviewed by the Supreme Court of Justice, but on matters of law only.20
Although there is no specialised court for damages claims arising from competition infringements, the PCA has proposed that the specialised Competition, Regulation and Supervision Court, which has jurisdiction to hear appeals from PCA decisions at first instance,21 also decides on damages actions arising purely from competition law infringements.22
The PCL applies to all anticompetitive practices that take place on Portuguese territory or that have, or may have, an anticompetitive effect in Portugal.23
The applicability of Portuguese law in cases of private enforcement concerning non-contractual obligations is regulated by Regulation (EC) No. 864/2007 (the Rome II Regulation) and concerning contractual obligations by Regulation (EC) No. 593/2008 (the Rome I Regulation).
Regarding damages actions, the law applicable to extracontractual civil liability, pursuant to the CC,24 is the law of the state where the main cause of the damage occurred. If the law of the state where the harm occurred considers the defendant liable while the law of the state in which the activity took place does not, the former will apply, on the condition that the defendant could have foreseen that the act or omission could result in damage in that state.
Contractual liability cases are, according to the CC,25 ruled by the law agreed on by the parties, provided that such law corresponds to a real interest of the parties or is connected with some elements of the contract. Where the parties have not agreed upon a specific law, the applicable law will be the one of the state of their common residence or the law of the state where the contract was signed.
Regarding the territorial jurisdiction of national courts, Regulation (EC) No. 44/2001 (Brussels I) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Lugano Convention26 are applicable in Portugal.
If such regulations do not apply, Articles 59 to 62 of the CCP give authority to the Portuguese courts in international matters on the following grounds: (1) the possibility of bringing the action in Portugal, according to the Portuguese rules on territorial jurisdiction;27 (2) the fact that the main ground of the action, or any of the facts substantiating it, occurred in Portugal; and (3) the fact that the right claimed cannot be effectively enforced in courts other than the Portuguese courts, provided there is a relevant link, of objective or subjective nature, with the Portuguese legal order. The parties are able to agree on the competence of the courts of a given state, provided the question to be decided is linked to more than one jurisdiction.28
There are no special rules in relation to the standing requirement in order to bring competition law actions. According to the general rules on liability,29 any legal entity or natural person who suffered harm within the Portuguese territory as a result of an unlawful act (an infringement of competition law, for the purposes of this chapter) has the right to be compensated for the harm suffered.30
Whether the plaintiff has a direct contractual relationship with the infringing party is not relevant for standing purposes. Thus, even an indirect purchaser may have standing, provided he or she claims having suffered harm as a result of an infringement of competition law.
In this respect, the PCA’s legislative proposal grants standing to associations of undertakings when filing popular actions (collective redress), which is not foreseen in the popular action legislation.
V THE PROCESS OF DISCOVERY
Under Portuguese law, there is no discovery procedure as it is understood in common-law systems. The courts have a discretionary power to request the disclosure of information which the court may consider important to the final decision of a given case from any of the parties or third persons. On a request by any party to the proceedings, the court may order the opposing party or any third person to present any kind of document necessary to prove the alleged facts.31 The requesting party has to identify, as accurately as possible, the document required and the facts he or she intends to prove with the document. The court may refuse the request if it considers that the document is not relevant to the decision.
The court may also, ex officio, order other documents to be submitted, if it considers them necessary to uncover the truth or to prove facts relevant to the case.32 Documents may be requested from the parties, or from third parties such as the PCA.
Unless it is considered justifiable on the grounds provided for in the law (including so as to avoid a violation of privacy or professional secrecy),33 a refusal to comply with the court’s order will result in the sanction of a fine.34 If one of the parties refuses to cooperate, the court will freely assess the meaning of such refusal and may reverse the burden of proof.35
In case of follow-on litigation, access to the PCA’s files may be deemed necessary or useful by the parties to prepare either their action for damages or their defence, regulated by Articles 32 and 33 of the PCL. According to those rules, private parties may claim access to the PCA’s file so long as the file is not protected by judicial secrecy.
If the proceedings are not covered by judicial secrecy (which is the general rule according to the principle of publicity), any person with a legitimate interest may request access to the file. The accessibility of a file involves the right to peruse, and obtain copies, extracts and certified copies of any part of the file, excluding documents or extracts that have been declared confidential by the PCA.
If the proceedings are covered by judicial secrecy, the parties involved may only have access to the file after the notification of the statement of objections by the PCA. Third parties shall only have access to the file after the final decision has been issued.
VI USE OF EXPERTS
Under Portuguese law, parties may, unless otherwise provided, use any means to prove their allegations. The judge must take into account all the evidence presented by the parties and may freely make or order the production of any kind of evidence deemed necessary for the truth to be reached.36 A defence hearing with the party to whom it is opposed is required.37
Expert evidence is admissible.38 It can either be requested by the parties or ordered ex officio by the court. Most commonly, a panel of experts is appointed, with the court appointing one expert and each of the parties appointing another expert. The probative value of the expert evidence is left to the appreciation of the judge.39
Despite the lack of experience in Portugal concerning the use of experts in the context of an action for damages arising from a competition infringement, it is expected that, in the future, such expertise will mostly be requested on economic issues (as an action for damages frequently requires a complex economic analysis), namely for the quantification of damages.
VII CLASS ACTIONS
The form of class action available for damages claims is the ‘popular action’ (ação popular) established in Article 52 of the Constitution of the Portuguese Republic and regulated by Law No. 83/95 of 31 August, amended by Decree Law 214-G/2015 of 2 October. According to that law, citizens (companies and professionals being excluded) or associations or foundations promoting certain general interests (including the promotion and respect of competition) have the right to file a popular action in order to protect those interests. The claiming party will have the right to obtain redress for harm suffered in violation of the general interest concerned. The PCA expressly refers to the ‘popular action’ in its legislative proposal and provides for several new specific rules not contemplated in the popular action law, namely in respect of standing (it grants standing to associations of undertakings); identification of the harmed parties; quantification of damages; and management and payment of compensation.40
The system provided for in the above-mentioned law may be considered to be an opt-out. The holders of the interests covered by the popular action that do not intervene in the action are notified through a press announcement and shall decide whether or not they accept representation in that action.
This type of action continues to be very rare, but, in March 2015, a landmark follow-on class action for damages was filed by the Observatório da Concorrência, an association that represents consumers in class actions related to competition infringements, in civil court, based on a June 2013 decision by the PCA. In this decision, the PCA imposed a fine of €3.7 million on Sport TV, having found that the Portuguese television network had abused its dominant position in the market for premium pay-TV sports channels for a period of at least six years, by imposing discriminatory conditions on operators and limiting development and investment in the market.
This much-anticipated case represents an important step forward in private enforcement in Portugal, as it is one of the first private competition cases, and the first class action in which damages for an infringement of competition law are being claimed.
VIII CALCULATING DAMAGES
According to Portuguese law,41 natural restoration or monetary compensation can be awarded following a successful claim for breach of competition law. Monetary compensation is available whenever the natural reconstitution of the claimant’s situation as it was before the illicit act occurred is impossible, insufficient or too costly.
Damages awarded are thus purely compensatory, as punitive damages are not commonly available, although doctrine and jurisprudence have accepted punitive damages that have been contractually provided for. The amount of the compensation to be awarded shall correspond to the difference between the current patrimonial situation of the injured party and the patrimonial situation of such party if the damage had not occurred. Monetary compensation includes the amount of the damage caused by the illicit conduct plus interest.
Compensation covers the harm actually suffered by the injured party (actual loss, damnum emergens) and the loss of profit or the advantages that, as a result of the illicit act, will not enter the patrimony of the injured party (loss of profits, lucrum cessans).
The loss of a chance can also be indemnified, in particular if expenses were undertaken in light thereof. The indemnity also allows for the compensation of moral harm suffered by an individual only, and future harm suffered which the judge may foresee.
Despite the rules regarding the calculation of damages provided for in the CC, the judge has a significant amount of discretion. Considering the complexity of quantifying antitrust harm, assessing the exact amount of the damages may be impossible or extremely difficult in a given case. In such an event, the judge may decide in accordance with equity, within the limits of the evidence produced.
However, as per Directive 104/2014, the PCA’s legislative proposal will change the legal landscape in respect of these cases by providing that the court may resort to the ‘Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102’ and that the PCA may assist the court in calculating the damages. The PCA’s legislative proposal should not amount to any wide change in this regard, as it is widely accepted that Portuguese law already complies with Directive 104/2014 as regards the calculation of damages.
If the injured party has contributed to the occurrence of the injury, the court may decide, considering the seriousness of both parties’ conduct and the consequences thereof, that the amount of the compensation shall be reduced or even totally excluded.
Interest is calculated from the moment the harm occurred until the moment the indemnity is paid42 and the interest rate is fixed by law.
Contingency fees are not allowed, as the by-laws of the Bar Association43 do not consent to fees exclusively dependent on the result (palmarium) or to fees consisting of a percentage of the result (quota litis). Fees should be calculated based on several factors related to the service provided, such as importance and complexity of the cause, urgency of the matter, time spent and, to a certain extent, results obtained.44
IX PASS-ON DEFENCES
Under Portuguese law, there is no express provision allowing for or prohibiting the defendant from arguing that the harm allegedly suffered by the plaintiff has been passed on to a third party. Both Directive 104/2014 and the PCA’s legislative proposal clarify this issue by providing that the court deciding a private enforcement claim shall take into account proceedings initiated by parties at different levels of the production or distribution chain.45 Additionally, Article 10(1) of the PCA’s legislative proposal includes three examples of factors to be considered by the court: (1) damages claims referring to the same infringement filed by the plaintiffs at different levels of the production chain; (2) judicial decisions rendered in respect of the damages actions foreseen in examples (1) and (3); and (3) public information regarding the enforcement of competition law by public entities. For the time being, the passing-on defence may be deemed admissible as a defence before national courts in a competition law dispute under the rules on the calculation of damages and unjustified enrichment.
The objective underlying damages awards, under Portuguese law, is to compensate the injured party only for harm suffered. When calculating an award for damages, the judge shall take into account the exact extent of harm suffered. Provided that the defendant is able to prove that the plaintiff transferred the damage, or part thereof, to a third person, (the pass-on defence), the judge shall not award the plaintiff ‘passed-on’ damages. Furthermore, if the plaintiff is awarded a sum of damages which goes beyond the harm actually suffered, there will be a situation of unjust enrichment, which is prohibited under Portuguese law.46
X FOLLOW-ON LITIGATION
Judicial and administrative proceedings before the PCA are completely independent from each other, according to the constitutional principle of the separation of powers. In this regard, it is relevant to note that a large majority of the Portuguese private enforcement precedents (not typically claims for damages, which are the object of Directive 104/2014) are either stand-alone actions or hybrid actions partially related to the subject matter of a PCA’s decision but wider in scope.
Therefore, the existence of a decision from the PCA establishing an infringement of competition law is not required for a private enforcement action to be initiated. The judicial court decides upon an action for damages arising from an infringement of competition rules irrespective of any previous decision already issued by the PCA on the same matter and relating to any other pending proceedings.
Also, there are currently no rules regulating the way in which proceedings before the PCA and judicial actions for damages related to the same infringement of competition rules should be coordinated, although Directive 104/2014 (and the PCA’s legislative proposal) addresses this issue in respect of the probative value of decisions issued by a competition authority. The PCA’s legislative proposal, in line with the Directive, foresees that a final condemnatory decision issued by it or by a Portuguese appeal court shall be deemed as an irrefutable presumption; and, going beyond Directive 104/2014, it proposes that a final condemnatory decision issued by a foreign competition authority or appeal court shall be deemed as a refutable presumption (whereas the Directive merely requires that such decisions be considered as prima facie evidence).47
Currently, even if it can be said that the courts tend in practice to follow the technical rationale of the PCA’s finding, the plaintiff (with whom the burden of proof lies) must still prove the existence of an anticompetitive practice before the court.
If a defendant has, within a previous administrative proceeding, applied for immunity or a reduction of fines in the scope of the PCA’s leniency programme,48 he or she is not exempt from paying compensation for the harm caused within the scope of a private follow-on action for damages. The leniency applicant is also not exempt from the applicable rules on joint and several liability.
The judicial limitation period is different from the administrative limitation period (i.e., for the PCA to initiate proceedings), which can make it more difficult in practice for the plaintiff to usefully conciliate both proceedings. The limitation period for non-contractual liability is three years after the injured party becomes aware of his or her right to claim damages, while the limitation period for the PCA to initiate proceedings for antitrust infringements is five years.49 There are no special rules on the beginning, duration, suspension or interruption of limitation periods to allow for conciliation between judicial and administrative proceedings; however, there may be a judicial notice served.
Currently, the possibility for a Portuguese civil court to delay its proceedings until a decision is issued by the competition authority on the same matter is not provided for in Portuguese law. Courts may decide to delay the proceedings for a certain period of time, but the limitation period remains an important obstacle to long stay periods.50 Under the Directive and the PCA proposal (Article 6(4)), the judge may now suspend the procedure until a decision is reached by the PCA, stopping the clock for statute of limitations purposes.
Attorney legal privilege is protected before judicial courts and administrative authorities (including the PCA) by the Portuguese Bar Association by-laws and both external and in-house counsel are protected as long as they are validly registered with the Portuguese Bar Association.
Some questions will arise when plaintiffs to an action for damages intend to access the PCA’s files to obtain documents deemed necessary to sustain their action. Despite the principle of publicity, access may be denied by the PCA, either in relation to certain categories of documents or to the entire file.
The PCA may have declared some documents as confidential on the grounds of its obligation to protect business secrets51 or otherwise confidential information, including professional secrets52 (attorneys, medical doctors, bank secrecy, etc.).
Also, documents submitted within the scope of a leniency application are protected during the administrative proceedings.53 The PCA shall declare the request for immunity or for a reduction of the fine, as well as all the documents and information presented by the leniency applicant as confidential. The access to those documents and information is granted to the co-infringers for right of defence purposes, but they will not be allowed to obtain copies thereof, unless duly authorised by the leniency applicant. Access by third parties to these documents will only be granted when authorised by the leniency applicant.
Portuguese law currently protects not only leniency documents (as it is binding under the Directive) but also pre-existing documents. In this context, the PCA’s proposal foresees that, for damages actions’ purposes, only leniency documents are protected; for all purposes other than damages actions, pre-existing documents continue to be protected under Portuguese competition law. Therefore, a practical consequence of Directive 104/2014 in Portugal is that, for the purpose of damages actions, pre-existing documents are not to be protected anymore.
As regards joint and several liability, the rule is set out in the CC for infringements in which multiple companies take part and therefore the rule provided in Article 11(1) of the Directive already exists. The same is, however, not true for the two exceptions provided for in Article 11(2) and 11(4) of the Directive. In this respect, the PCA’s legislative proposal has followed the text of the Directive, which is rather challenging for the Portuguese legal system as these exceptions may create conflicts with classic rules and principles of extracontractual liability.
No protection exists in relation to documents issued in a proceeding before the PCA which has ended in a settlement decision.54
Note that the entire file may have been declared to be under judicial secrecy by the PCA.55 In that case, third parties (namely plaintiffs in an action for damages) may only be allowed to access the file after the final decision has been issued.56
XII SETTLEMENT PROCEDURES
Unlike public enforcement by the PCA,57 there is no specific judicial settlement procedure available within the scope of a damages action.
According to the CCP, parties can reach a settlement both before and during a court proceeding,58 provided that no non-disposable rights are involved.59 The settlement may be reached by agreement of the parties or through conciliation (which can take place at any stage of the proceedings further to the parties’ joint requirement or when the court finds it appropriate).60
Any settlement between the parties during a court proceeding shall be subject to confirmation (homologação) by the court in order to have the value of a judicial ruling.
Competition law issues can be resolved through private arbitration61 and, despite the fact that arbitration is in principle not public, there seem to be a number of precedents62 and at least one significant arbitral decision – appealed before the Lisbon Court of Appeals and confirmed by such upper court in 2014 (declaring an abuse of dominance in the health sector).
Any dispute with an economic value and not mandatorily submitted to judicial courts or to necessary arbitration by a special law can be submitted to an arbitral tribunal by way of an arbitration agreement. The agreement can relate to current disputes even if such are being dealt with in a judicial court (submission agreement63) or to events that may occur in the future, whether arising from a contractual or non-contractual relationship (arbitration clause).64
Arbitrators shall decide in accordance with the law, unless the parties have authorised them to decide according to equity (ex aequo et bono).65 The award given by arbitrators has the same legal force as a first instance court decision and cannot be submitted to an appeal unless otherwise agreed by the parties.66
Arbitration procedures are confidential unless otherwise decided by the parties;67 appealed to the state courts;68 or subject to enforcement actions69 by a state court (as state proceedings are public by nature).70
XIV INDEMNIFICATION AND CONTRIBUTION
Under Portuguese law, there is joint and several liability in relation to actions for damages.71 Therefore, if the damage was caused by several persons, the plaintiff may recover the full amount of damages from any one of them. One defendant shall pay the full award and then retains a right of redress against the other defendants, claiming the corresponding parts from them. The contribution of each infringer is determined by the court on the basis of its individual guilt and the effects arising from it. However, the proposal (under Article 5(5)) changes the general presumption under the Portuguese Civil Code (Article 497) that all infringers share equal guilt, replacing it, for the purposes of competition damages actions, with a market-share-based allocation.
XV FUTURE DEVELOPMENTS AND OUTLOOK
To date, no legal rules have been adopted in order to facilitate private antitrust enforcement in Portugal, although the transposition of Directive 104/2014 should occur in 2017. Notwithstanding, the general legal framework applicable to civil liability and invalidity of contracts in principle provides sufficient tools for private antitrust enforcement in Portugal.
The PCA’s legislative proposal follows Directive 104/2014 closely, which is in line with the EU’s overall objective of harmonising the Member States’ judicial systems in respect of the private enforcement of competition law. Nevertheless, beyond the Directive, there are a number of interesting novel provisions in the proposal, among which we would point out the following examples:
First, the regime will also be applicable to purely national competition law infringements including to those consisting of abuses of economic dependence. Second, it confers jurisdiction on the specialised Competition, Regulation and Supervision Court to decide on private enforcement actions which are exclusively based on competition law infringements and on all other civil claims also exclusively based on competition law infringements. Third, it regulates the civil responsibility of economic groups and the right of recourse. Fourth, it foresees measures to preserve the means of evidence where a serious infringement, capable of harming the plaintiff, is suspected; the request of such measures will also interrupt the statute of limitation. Fifth, it changes the general presumption under the Civil Code that all infringing parties share the same guilt, replacing it, for the purposes of damages actions, by a market share based allocation. Sixth, it clarifies the scope of application of competition private enforcement to collective redress by introducing several specific rules not provided for in the general legislation. Finally, it introduces specific information systems to facilitate the intervention of the PCA in relation to observations on the proportionality of requests of access to documents included in its files, as provided for in the Directive, and in relation to amicus curiae interventions pursuant to Article 15(3) of Regulation 1/2003. This possibility already existed under general law, but the introduction of specific information systems is expected to make a major difference in the level of actual intervention of the PCA. A further information exchange mechanism set in the proposal and relevant to private enforcement (though unrelated to the Directive) aims at facilitating the obligation set under Article 15(2) of Regulation 1/2003 pursuant to which Member States must inform the European Commission of all written decisions where Articles 101 or 102 of the Treaty were applied. To date this rule has been scarcely enforced and the proposal, through an amendment to the PCL, states that the courts must inform the PCA, who will inform the European Commission.
However, the dramatic increase of court fees in Portugal – as a consequence of the recent financial crises of the country and respective international bail-out – poses a serious constraint to actions for damages as it very much increases the financial risk in bringing such actions. Such increased risk (the extent of which is yet to be determined), together with the uncertainty of outcome due to factors such as the lack of precedents and the passing-on defence and the Bar Association limits on contingency fees, may indeed act as a deterrent to the development of actions for damages in the country.
Considering the above and that there is only so much public enforcement any competition authority can do together with the importance of private enforcement for the overall level of compliance with competition law in a developed economy, the PCA is likely to play an increased and friendlier role in the advocacy and promotion of private enforcement. As its public enforcement profile is consistently increasing and its leniency programme is starting to bear fruit (and thus alleviating the fear that private enforcement could jeopardise the appetite for leniency), the PCA is now expected to follow in the footsteps of the European Commission, supporting private enforcement72 as a key complementary dimension of its mission.
1 Gonçalo Anastácio is a partner at SRS Advogados. The author would like to thank Rita Lynce de Faria – professor of civil procedure at Universidade Católica and of counsel at SRS Advogados – for her comments on this chapter; and Luís Seifert Guincho – from the competition law department of SRS Advogados – for his research support.
2 Both of the PCA’s decisions were also appealed. The first one was annulled by the Court because the administrative sanction had become time-barred and the second one was upheld by the Court, although the fine was reduced.
3 Around the same time NOS filed its action, Onitelecom also sued PT for damages. However, the case was first dismissed by the Lisbon Judicial Court on the grounds that the statute of limitation had expired. The Court applied the three-year statute of limitation foreseen in Portuguese tort law and considered that the deadline started running from the day the plaintiff filed its complaint before the PCA. The Lisbon Appeal Court confirmed the initial ruling.
4 This is, in fact, the second class action in Portugal where competition law issues have been raised. However, in the first case, DECO v. Portugal Telecom, the competition law issues were not discussed because the case was decided based on specific telecom rules.
5 Leonor Rossi and Miguel Ferro refer to the existence of one precedent, with the caveat that it can be argued as essentially an unjustified enrichment case (Revista de Concorrência e Regulação/Competition and Regulation, No. 10, April–June 2012, p. 113).
6 There is already one very recent res judicata precedent, specifically for damages, as regards the unfair competition regime, the so-called PIRC, under Decree-Law No. 370/93, of 29 October.
7 According to Miguel Sousa Ferro in Jurisprudência Portuguesa de Direito da Concorrência, Capítulo 7: Jurisprudência de Private Enforcement, there were 106 judicial rulings between 2011 and 2015, and there was an increment of 212 per cent more judicial rulings in 2015 than in 2011.
8 On these and other conclusions, see the above-mentioned paper.
9 The Portuguese Civil Code enacted by Decree No. 47344, of 25 November 1966, as amended.
10 The new Portuguese Code of Civil Procedure was enacted by Law No. 41/2013, of 26 June.
11 Articles 61 and 62 of the CCP.
12 Articles 483, 487 and 563 of the CC.
13 Article 342 of the CC.
14 Articles 414 of the CCP and 346 of the CC.
15 Article 498 of the CC.
16 Article 6 of the PCA’s legislative proposal (Article 10(3) of Directive 104/2014).
17 Article 309 of the CC.
18 Article 289 of the CC.
19 Article 71 of the CCP.
20 Articles 68, 69 and 671(1) of the CCP.
21 Article 84(3) of the PCL.
22 Vide Chapter V – Legislative Amendments, Amendment to Article 112 of Law 62/2013 of 26 August, of the PCA’s legislative proposal.
23 Article 2(2) of the PCL.
24 Article 45 of the CC.
25 Articles 41 and 42 of the CC.
26 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2007).
27 Territorial jurisdiction is regulated in Articles 70 to 84 of the CCP.
28 Articles 59 and 94 of the CCP.
29 Article 483 of the CC.
30 Articles 11 and 30 of the CCP.
31 Articles 429 and 432 of the CCP.
32 Article 436 of the CCP.
33 Article 417(3) of the CCP.
34 Articles 417(2), 430, 433 and 437 of the CCP.
35 Articles 417(2) of the CCP and 344(2) of the CC.
36 Article 411 of the CCP.
37 Article 415 of the CCP.
38 Article 467 et seq. of the CCP and Article 388 of the CC.
39 Article 389 of the CC.
40 Article 19 of the PCA’s legislative proposal.
41 Article 562 et seq. of the CC.
42 Articles 805(2)(b) and 806(1) of the CC.
43 Law No. 15/2005, of 26 January.
44 Article 101 of the by-laws of the Portuguese Bar Association.
45 Article 12 of Directive 104/2014 and Article 10 of the PCA’s legislative proposal.
46 Article 473 of the CC.
47 Articles 7(1) and (2) of the PCA’s legislative proposal (Article 9 of Directive 104/2014).
48 Article 75 et seq. of the PCL.
49 Article 74 of the PCL.
50 Article 272 of the CCP.
51 Article 195 of the Criminal Code.
52 Article 195 of the Criminal Code and Article 87 of the Bar Association by-laws.
53 Article 81 of the PCL. Here the Pfleiderer doctrine will surely be very relevant. For a Portuguese language review and comment on the 2011 Pfleiderer ruling by the ECJ see Catarina Anastácio in C&R – Revista de Concorrência e Regulação, No. 10, April–June 2012, pp. 291–314.
54 Outside the leniency regime, protection for documents follows the general rule, as established in Articles 30, 32 and 33 of the PCL.
55 Article 32(1) of the PCL.
56 Article 32(2) of the PCL.
57 See Articles 22 and 27 of the PCL and respective commentaries by Gonçalo Anastácio/Marta Flores and Gonçalo Anastácio/Diana Alfafar respectively, in Lei da Concorrência Anotada, Comentário Conimbricense, Almedina, 2013.
58 Article 283 of the CCP.
59 Article 289 of the CCP.
60 Article 594 of the CCP.
61 See Law No. 63/2011, of 14 December – the Arbitration Law.
62 See Leonor Rossi and Miguel Ferro (Revista de Concorrência e Regulação/Competition and Regulation, No. 10, April–June 2012, p. 93 and note 4).
63 Pursuant to Article 277(b) of the CCP, the court will stay its proceedings in the event the parties reach an arbitration agreement.
64 Article 1(3) of the Arbitration Law.
65 Article 39 of the Arbitration Law.
66 Article 39(4) of the Arbitration Law.
67 Article 30(5) of the Arbitration Law.
68 Article 46 of the Arbitration Law.
69 Article 47 and 48 of the Arbitration Law.
70 As regards arbitration and competition law, see the following articles: Luís Silva Morais, ‘Aplicação do Direito da Concorrência, nacional e comunitário, por Tribunais Arbitrais: o possível papel da Comissão Europeia e das Autoridades Nacionais de Concorrência nesses processos’, Presentation at the Portuguese Competition Authority, 15 October 2007; Cláudia Trabuco & Mariana França Gouveia, ‘A Arbitrabilidade das questões de concorrência no direito português: the meeting of two black arts’, in Estudos em Homenagem ao Professor Doutor Carlos Ferreira de Almeida, Vol. I, Almedina, Coimbra, 2011 and José Robin de Andrade, ‘Apresentação sobre a nova Lei de Arbitragem voluntária e a aplicação do Direito da Concorrência pelos tribunais arbitrais’, in Revista de Concorrência e Regulação/Competition and Regulation, No. 11/12, July–December 2012, pp. 196–213.
71 Article 497 of the CC. The PCA’s legislative proposal is in line with previous legislation and jurisprudence.
72 This could, inter alia, include information on private enforcement; development and publicity on the website of a list of precedents on private enforcement; public availability for a role of amicus curiae; quantification of damages within the public enforcement cases (already done in very limited precedents); and development of the training for judges and other magistrates that has been done in the last decade.