The Public Competition Enforcement Review: Portugal
The Portuguese Competition Act, Law 19/2012 of 8 May (the Competition Act), which has been in force since 2012, modified the legal standards for the handling of complaints by the Portuguese Competition Authority (PCA), giving the PCA greater discretion to decide when to open an investigation based on certain criteria.
According to the Competition Act, the PCA will exercise its sanctioning powers whenever it is in the public interest to prosecute and punish an infringement of competition rules, taking into account the goals of its competition policy, the facts that are known to it, the severity of the alleged infringement, the probability of proving its existence and the scope of the investigation that is required.
To increase transparency, at the end of each year, the PCA publishes, on its website, its strategic priorities regarding competition policy for the following year.
The PCA recently issued its statement of priorities for 2021 (also available on its website) and pledged to:
- defend the Portuguese economy through the detection and sanctioning of practices that aim to take advantage of the current crisis;
- investigate signs of abusive practices and collusion in the digital market, resulting from the current shift of the risk of anticompetitive practices to the sector of electronic trade of goods and services; and
- contribute to economic recovery by promoting the reduction of structural and legislative barriers, such as those related to professional mobility and innovation.2
These strategic priorities combine the consolidation of internal proceedings, the strengthening of the role of the PCA as a voice to be heard in terms of legislative reforms, and the meeting of the international enforcement trends related to algorithms and artificial intelligence.
The PCA also aims to reinforce its enforcement powers within the context of the transposition of the Directive ECN+, Directive (EU) 2019/1. In this sense, the PCA submitted to public consultation its proposal of amendments to the Competition Act related to the referred transposition and, in April 2020, it submitted the respective draft legislation to the Portuguese government.3 The deadline for the transposition of this Directive into the Portuguese competition framework was February 2021, although at the time of writing this had not yet occurred.
The amendments proposed will impact relevant provisions of the Competition Act, such as: (1) terminological changes with concrete impacts on individual and companies' rights; (2) amendments to provisions concerning the processing of anticompetitive complaints; (3) increased jurisdiction of the PCA concerning the scope of dawn raids and other investigatory powers; (4) power of the PCA to reclassify the confidentiality of the information provided by particulars; (5) amendments to procedural deadlines; and (6) amendments to the methodology to determine fines and other pecuniary sanctions.
The PCA's statement of priorities for 2021 indicates that this authority will continue to focus its investigations on sectors that explore the current fragile situation of consumers (e.g., the retail food sector). In addition, and in this context, the PCA seeks to take the pandemic into consideration when assessing cooperation between companies, as long as said cooperation constitutes a proportional, temporary and necessary means of dealing with eventual shortages.4
The PCA emphasised that it will continue to focus on combating cartels and on continuing to promote ex officio investigations as an essential instrument to identify possible anticompetitive practices using instruments as cooperation protocols such as the one signed in 2018 with the Infarmed, the Portuguese pharma regulator5 and, in 2019, with the Tribunal da Concorrência, Regulação e Supervisão (TCRS) to guarantee that the Tribunal's library will have access to the PCA's library.6
Finally, the PCA will contribute to the economic recovery by reinforcing its recommendations to eliminate unnecessary barriers to economic initiatives. As such, it will focus this activity on the barriers identified in 2018 in cooperation with the OECD, in liberal professions and in innovation, as well as offering its contribution to the legislator on perfecting current legislation on these matters.
Article 9 of the Competition Act prohibits agreements that restrict competition, including cartel agreements (i.e., agreements and concerted practices between competitors whose object or effect is the restriction of competition by, inter alia, directly or indirectly fixing sale or purchase prices or any other transaction conditions, by limiting or controlling production, distribution or technical development or investments or by sharing markets (including bid rigging), through import or export restrictions and through anticompetitive actions against other competitors).7
The PCA is an independent entity responsible for the enforcement of competition law in Portugal and for conducting administrative infringement procedures under the Competition Act. The PCA's decisions may be appealed to the Competition, Regulation and Supervision Court (appeals were previously heard by the Commercial Court of Lisbon).
In Portugal, cartels are administrative (not criminal) offences sanctioned with fines not exceeding 10 per cent of the offending undertaking's turnover in Portugal in the year preceding the decision, even though criminal law principles apply to this type of infringement. Some argue that according to general rules subsidiarily applicable to administrative offences, when there is more than one infringement, the maximum fine may be twice the abstract maximum applicable to the most serious offence, which in a cartel would be 20 per cent of the turnover of the offending undertakings.8
The members of the board of directors of the offending undertakings, as well as any individuals responsible for the management or supervision of the areas of activity in which there has been an administrative offence, when they know of, or it is their duty to know of, an infringement committed and they have not adopted appropriate measures to end the infringement immediately, are liable to be sanctioned under the Competition Act, unless they are subject to a more serious sanction under a different legal provision. The fine imposed on individuals cannot exceed 10 per cent of the individual's annual income deriving from the exercise of their functions in the undertaking concerned.
As an ancillary sanction under Article 71 of the Competition Act, a ban of up to two years on the right to take part in tendering processes for public works contracts, public service concessions, the leasing or acquisition of moveable assets or the acquisition of services or procedures involving the award of licences or authorisations by public entities, may be imposed. The ban may be imposed in cases in which the practice leading to an administrative offence punishable by a fine occurred during or as a result of those processes.
Article 29 of the Competition Act establishes that the PCA may also impose behavioural or structural measures to end the prohibited practices or their effects.
Under the Competition Act, and as regulated by the PCA, undertakings or individuals connected to the cartel may apply for immunity for a reduction of the fine if they provide valuable information about the cartel.
The Competition Act also establishes the possibility of cases being settled, at the PCA's discretion, before a decision is issued.9
i Significant cases
The PCA's most significant cases were related to cartel cases and included the Glucose Diagnostic Strips case,10 the Salt case,11 the Flower Mills case,12 the Catering Services case,13 the Flexible Polyurethane Foam case,14 Pre-Fabricated Modules cartel,15 the Cleaning Companies cartel,16 the Office Consumables cartel,17 the alleged Insurance cartel,18 the alleged Train Maintenance cartel19 and the alleged Telecommunication cartel.20
Since 2019, the PCA has demonstrated its increasing interest in prosecuting anticompetitive practices and unprecedented sanctions have been imposed.
In July 2019, a first case concluded with the application of large fines, totalling €54 million, was imposed on five insurance companies: Fidelidade, Lusitania, Multicare, Seguradoras Unidas and Zurich Insurance. In this case, the PCA concluded that said companies had, between 2014 and 2017, acted in coordination, agreeing on prices and allocating clients in the market of workplace, health and car insurance to large corporations. This investigation started as a result of a leniency agreement with Seguradoras Unidas, which was granted an exemption of the fine under the leniency programme. Fidelidade and Multicare (which are part of the Seguradora Unidas group) also settled the case, which resulted in the reduction of their fines by 50 per cent. Finally, the PCA also imposed sanction on individuals: three board members of Lusitania and one of Zurich, were fined amounts between €6,000 and €24,000.21
In September 2019, the PCA levied the – at the time – largest fines in a horizontal case totalling €225 million and imposed on 14 companies active in the banking sector. Although not analysed as a cartel, the proceedings were initiated subsequent to a leniency application, and the PCA concluded that the defendants had, between 2002 and 2013, exchanged sensitive competitive information regarding retail banking credit products, such as mortgage, consumer and corporate loans. This case also requires an additional mention, since the fines imposed have not followed a pattern, as the PCA has imposed fines that range from 0.18 per cent to 9.57 per cent of the offending undertaking's turnover in Portugal in the year preceding the decision. This case was appealed and is currently being assessed by the Portuguese Competition, Regulation and Supervision Court.
In 2020, the PCA levied its largest fines ever in two consecutive cases. First, in early December, by sanctioning a telecommunications operator with a fine of €84 million for alleged market sharing and price fixing of mobile and fixed telecommunications services, under a mobile virtual network operators relationship, between January and November 2018. The other participant benefited from the leniency programme and was exempted from both the pecuniary fine as well as any ancillary sanctions.22 Also in the telecommunication sector, the PCA opened a proceeding against the four main telecommunications companies in Portugal for allegedly participating in a cartel aiming to limit competition in online advertising on the Google search engine, by limiting the possibility of comparison between their offers, thus reducing the transparency of this market.23
Subsequently, in a horizontal case in the food retail sector six, large retail food chains, two suppliers and two individuals, were sanctioned for alleged price fixing through hub-and-spoke arrangements made between 2007 or 2008 and 2017, with a total fine of €304 million, including the highest individual fine of €121.9 million.24 In addition, the PCA is currently pursuing investigations in at least eight more proceedings for similar practices in this sector that are likely to lead to more decisions in the course of 2021 with a very high potential for fines.25
In December 2019, the PCA published a note to the OECD providing an overview on issues involved in the analysis of hub-and-spoke cartel cases.26 The note highlighted as potential issues: (1) the analysis of hub-and-spoke evidence (e.g., retail price setting and alignment; control and monitoring of retail prices in the market; retail price deviation corrections; coercion or retaliation, or both); (2) the legal frame of the arrangement (horizontal versus vertical); (3) the identification of the instrument used to implement the anticompetitive practice (such as RPM); and (4) the intent and awareness of the involved undertakings. Nevertheless, the challenges involved in the prosecution of this type of conduct, the PCA indicated that all the identified issues 'should not deter enforcement, but rather call for increased robustness of the analysis of the underlying evidence and theories of harm'.
Concerning earlier cases, the PCA also sanctioned a cartel involving undertakings operating in the printing and graphics sector. Several undertakings were fined for a price-fixing and market-sharing agreement concerning the market for application form paper after an investigation triggered by a leniency application. The fines totalled €1.798 million. In addition, three board members were fined €6,000 for being aware of the cartel and failing to take action to put an end to it. 27
In 2013, the PCA sanctioned a cartel in the market for polyurethane foam for comfort products. This case is very relevant, as the PCA's investigation was conducted in parallel with a cartel investigation in the same market by the Spanish Competition Authority. The investigation was triggered by a leniency request by an undertaking that received full immunity (as well as for its board members), and all the sanctioned undertakings and individuals benefited from substantial fine reductions in view of the settlement procedure. The PCA imposed fines amounting to €993,000 on two undertakings and to €7,000 on board members. 28
Furthermore, in the area of public procurement, the PCA has also sanctioned infringement almost since its incorporation.
In one of the first high-profile investigation, the PCA has sanctioned a cartel involved in bid rigging. It levied fines against Abbot, Bayer, Johnson & Johnson, Menarini and Roche in 2005 for bid rigging in several public offers presented in the context of tendering processes for the supply of glucose diagnostic strips. The Commercial Court of Lisbon (which previously had jurisdiction over appeals of PCA decisions) joined the case with another related to similar charges, and ordered the PCA to correct specific formal irregularities. The PCA issued a new decision, imposing fines of €13.5 million.29
Subsequently, the PCA has sanctioned five undertakings for anticompetitive practices in public tenders for the supply and assembly of prefabricated dwellings that would be used to enable the normal course of school activities during the reconstruction of certain schools, under a governmental public works initiative named Parque Escolar. In this case, the undertakings involved have waived their right to appeal against the PCA's decision, in order to benefit from a 10 per cent reduction in their fines. Therefore, the fines imposed by the PCA upon the five undertakings amounted to €831,810.30
In 2018, the PCA sanctioned Sacyr and one of its directors for bid rigging in a tender for the provision of maintenance services to railways.31 In addition, within the scope of this infraction, in 2019, the PCA has also sanctioned Mota-Engil32 and Futrifer33 and their respective director in charge of the conduct. Lastly, in 2020 the PCA also sanctioned Fergrupo and Somafe, as well as a member of each of their administrations, for their participation in this conduct. The total amount of fines in this procedure was €3.4 million, although three of these companies collaborated with the PCA, forgoing their right to judicially contest this decision, and benefited from the settlement procedure and a reduction in the fine.34 The PCA imposed, on the two companies that did not use the settlement procedure, an additional penalty of a ban of up to two years on participation in public tenders, limited to the tenders relating to the market for maintenance services for track equipment on the national rail network, which was the first time the PCA imposed this type of sanction.
Although not related to cartel cases, there have been a number of cases involving recommendations and decisions issued by trade associations. In some cases, the infringements are similar to standard antitrust cases (e.g., price fixing). In most cases involving trade associations, the investigated behaviour nevertheless related to recommended practices, as well as maximum prices, which were understood by the undertakings to be mandatory.
For instance, the PCA fined the Association of Navigation Agents of Portugal for price-fixing practices,35 and stated that the National Association of Freighters had issued a decision that, in the PCA's view, constituted a collective refusal to deal with a specific terminal operator36 and in 2011, the National Association of Parking Lot Companies was fined nearly €2 million for its recommendation regarding pricing criteria in response to the introduction of new legislation on parking lots.37
In addition, the PCA has also fined the Portuguese Association of Driving Schools in the amount of €400,000 for alleged price-fixing practices. In this case, the president of the Association was also fined approximately €13,776, since the PCA concluded that he was aware and had allegedly been directly responsible for the adoption and effective execution of the anticompetitive practice.38
It should also be mentioned that, in 2017, the PCA closed, with commitments (after a public consultation period), two separate proceedings regarding statistical information systems within trade associations (the Portuguese Association of Specialised Credit and the Portuguese Association of Leasing, Factoring and Renting). The commitments offered by the two associations made significant changes to their respective systems, with regard to the historic nature of the information and the adequate scope of access to the relevant market data.39
Similarly, the PCA also closed with commitments an investigation of the Northern Bread and Cake Industries Association, following its president's public allegations that the prices in bread would rise around 20 per cent. As a consequence, the PCA agreed to close the proceedings contingent on the compliance with some commitments by the Association, such as the release of a public statement asserting the total independence of its associates in setting prices.40
In July 2019, the PCA issued a statement of objection against two associations in the advertising sector.41 The object of this process is a rule set by these associations limiting the maximum number of participants in private tenders, with the aim of restricting competition between associates. Following this statement, in October 2020, the PCA fined one of the associations in question, the Portuguese Association of Advertising, Communication and Marketing Agencies, €3.6 million. The case was closed for lack of sufficient evidence in relation to the other one.42
The PCA's investigations into professional associations are also of interest. The PCA has fined several national professional associations, such as the Veterinarians Association, the Dentists Association, the Doctors Association and the Chartered Accountants Association, as a result of decisions that had an effect on their members' pricing (including recommended and maximum prices considered mandatory by the members).43 More recently, the PCA opened proceedings against the Psychologists Association because of clauses in their code of conduct that allegedly had a restrictive effect on the functioning of the market. In order to address the PCA's concerns, the Psychologists Association offered to amend its code of conduct accordingly and to make the alterations public.44 These commitments were later accepted and deemed mandatory by the PCA.45 In addition, in 2020, the PCA also opened a procedure against the National Association of Land Surveyors for price fixing, due to the publication of price chart, with the aim of standardising prices of its associates' activities.46
In June 2019, the PCA published a press release47 warning business associations to refrain from making public statements about prices of goods or services or other business conditions that may promote or facilitate the coordination of their associates' behaviour. The warning comes from the decision imposed on the Association of Bakery Industry (AIPAN), which included an obligation to clarify that their associates had total freedom and autonomy in pricing, minimising the potential restrictive effects of a statement made by the AIPAN's president on the price of bread. In May 2020, the PCA ordered the Portuguese League of Professional Football to suspend one of its deliberations, which constituted a no-poach agreement regarding the football players who rescinded their contracts during the covid-19 pandemic.48
ii Trends, developments and strategies
Under the previous legal framework in Portugal, antitrust decisions were not generally published on the PCA's website, and current access to antitrust decisions is still very limited in cases with pending judicial appeals; however, during the last year the PCA has updated its website and decision directory, greatly facilitating research on previous decision practice as well as current proceedings. In addition, the PCA also continues to publish the issuance of statements of objections and information regarding the carrying out of unannounced inspections, through press releases.
According to publicly available information, the sanctioning of antitrust conduct in Portugal has occurred more frequently with regard to restrictive practices within trade and professional associations, including price fixing, and to bid-rigging cartels. Hence, in 2016 the PCA published an antitrust compliance guide for trade associations, aimed at better elucidating which behaviours or decisions could present competition risks and should, therefore, be avoided.
In addition, the settlement mechanism established in the Competition Act has proven to be a very useful instrument for the PCA to investigate and prove cartel cases, as well as other antitrust infringements. The settlement procedure was used in the above-mentioned 2019 decisions in the railway and insurance sectors.
The PCA has also made it clear that the state must refrain from promoting arrangements between competitors, as addressed in the case concerning meetings promoted by the government of the Azores with several milk producers in which commercial conditions might have been discussed. The PCA closed the case without imposing any sanctions, but recommended that the government of the Azores end the practice and refrain from acting in any way that could potentially facilitate collusive behaviour in the region.49
The PCA is also expected to issue the remaining decisions in retail and wholesale of food and beverages, which seems to be its main focus. The separate closing of the cases for each individual participant, normally using settlement procedures, is currently the most common approach of the PCA to restrictive practices investigations.
The PCA will continue to make cartel cases a priority for 2021. In particular, the PCA will prioritise the investigation of cartels with greater impact on consumers, mainly in sectors that are particularly susceptible to being exploited, in the current context of pandemic, such as the food retail sector. The PCA will seek to continuously improve its internal investigative procedures, in order to make full use of the most appropriate tools for evidence collection and treatment, namely in a digital environment. Indeed, the PCA has affirmed that it will pay close attention to the eventual use of algorithms or artificial intelligence so that these cannot be a way of exempting responsibility. Following this trend, in 2020, the PCA created an inter-departmental taskforce for the digital sector, which will continue to operate in 2021.
In 2020, as far as we are aware, the PCA carried out searches in the premises of food distribution companies in the Madeira island,50 as such, we expect developments with regard to the investigation of restrictive practices in this sector in 2021.
The PCA will continue to promote its leniency policy as an essential instrument for cartel investigations. In fact, it was the leniency programme that gave rise to most of the above-mentioned investigations into cartel cases, as well as the banking case, which was initiated through a leniency application, although it is not assessed as a cartel.
Antitrust: restrictive agreements and dominance
As previously indicated, the Competition Act prohibits agreements, concerted practices and trade association decisions, including cartels, whose object or effect is to restrict competition (Article 9 of the Competition Act). It also prohibits undertakings in a position of dominance from abusing their position (Article 12 of the Competition Act).
Abusive conduct includes imposing, directly or indirectly, unfair purchase or sale prices or other unfair trading conditions, limiting production, markets or technical development to the detriment of consumers, applying dissimilar conditions to equivalent transactions with trading parties, thereby placing them at a competitive disadvantage, making the execution of contracts subject to the acceptance by the other parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of the contracts, and refusing another undertaking access to a network or other essential facilities that it controls, when appropriate payment for access is offered, in a situation where the other undertaking cannot, therefore, in fact or in law, act as a competitor of the undertaking in a dominant position in the market, upstream or downstream, unless the dominant undertaking can demonstrate that, for operational or other reasons, this access cannot reasonably be provided.
The Portuguese legal framework on restrictive practices and the abuse of dominant positions is very similar to that applied at the EU level; however, the Competition Act also includes provisions on the abuse of a situation of economic dependence.51 An abuse of a situation of economic dependence may include any of the types of conduct previously mentioned and identified as potentially abusive under the abuse of dominance rules, as well as the full or partial rupture of an established commercial relationship, in view of past commercial relations, trade practices in the relevant market and contractual conditions.
i Significant cases
The major cases regarding the abuse of a dominant position involved Portugal Telecom (PT), the former telecommunications incumbent. In fact, PT was sanctioned for discriminatory pricing for allegedly offering more favourable prices, through special discounts, to operators from its group compared to competing retailers. It was also sanctioned for alleged margin-squeezing practices and for an alleged refusal to grant access to its underground conduit network, which the PCA considered to be an essential facility.52 The most significant sanction imposed amounted to approximately €53 million, although the appellate court considered the infringement to be time-barred.
In 2009, the PCA dismissed, subject to certain conditions, a case against the food undertaking Sugalidal on the basis that it had allegedly abused its dominant position in the market for purchasing tomatoes for processing by requiring its suppliers to use a specific variety of seed produced by a company of its group. Sugalidal undertook to remove the illegal clause from its contractual arrangements and to publicise the removal.53
The PCA also sanctioned Sport TV, an undertaking active in the supply of premium sports content for television platforms, with a fine of €3.7 million for an alleged abuse of a dominant position consisting of applying discriminatory commercial conditions to several pay-per-view operators.54
The PCA has also sanctioned a professional association for an abuse of a dominant position. In 2010, the Portuguese Chartered Accountants Association was fined for alleged restrictions imposed in the market for the training of certified accountants.
The National Association of Pharmacies and three other undertakings of the same group (Farminveste SGPS, Farminveste – Investimentos, Participações e Gestão, SA and HMR – Health Market Research, Lda) were also sanctioned with a fine amounting to €10.34 million for abuse of a dominant position in the markets for both pharmaceutical commercial data and market studies based on pharmaceutical commercial data. In 2016, this decision was upheld by the Competition, Regulation and Supervision Court; however, the amount of the fine has been reduced to €6.89 million.55
In 2018, curiously enough, the PCA closed an abuse of dominant position by the postal service incumbent CTT by means of the acceptance of certain commitments offered by this company. According to the public information, CTT has undertaken to, under certain conditions, offer access to its postal network to competitors.56
In connection with vertical restrictions, the PCA closed a procedure against Bayer regarding a clause in its standard contract with wholesalers, according to which wholesalers were allegedly obliged to carry Bayer products, exclusively, for five years.57 Bayer removed the clause from the contracts and proposed an amended contract to the PCA as a remedy. The PCA has also fined the dairy company Lactogal €341,098 for resale price maintenance practices (minimum price fixing) in the on-trade distribution market for dairy products, considering it a vertical agreement.58
The PCA sanctioned Petrogal, Galp Açores and Galp Madeira (all of which are part of the Galp Energia group and active in the liquefied petroleum gas sector) with fines amounting to €9.29 million for exclusive distribution agreements that allegedly restricted passive sales.59 This decision was upheld by the Competition, Regulation and Supervision Court (although the Court has reduced the fines to €4.1 million) and more recently by the Lisbon Court of Appeal, which confirmed the previous Court's decision in full.
In December 2018, after several years of investigation, the PCA closed its investigation on exclusive distribution agreements regarding certain TV sporting rights between pay-TV platforms and football clubs. These agreements had a duration of 10 years, and the pay-TV platforms at stake were shareholders of the main paid TV content channel in Portugal, Sport TV.60
During the course of 2019, the PCA imposed a fine of €48 million on EDP – Gestão da Produção de Energia, SA for abuse of a dominant position by means of the manipulation of the offer of the production infrastructures in order to obtain greater revenues.61 The investigation started in 2016, and the PCA concluded for the existence of anticompetitive practices as a result of the control of the offer of EDP's telerregulation and second band services under the CMEC regime. According to the PCA, by deviating the offer under the CMEC regime to other channels, EDP caused a relevant negative impact on the Portuguese Electric National System and harmed consumers.
ii Trends, developments and strategies
The cases concerning PT's abuse of its dominant position faced many judicial obstacles. In fact, the decision imposing a fine of €38 million against PT for refusing to provide competitors access to what the PCA considered an essential facility – PT's underground conduit network – was overturned on appeal by the Portuguese Competition, Regulation and Supervision Court. The Lisbon Court of Appeal also considered the most significant sanction applied in this context – €53 million – to be time-barred.62
The PCA has also sanctioned undertakings for having provided false or misleading information, in the context of a request for information by the PCA. In the first case, the PCA imposed a fine of €150,000 on Peugeot Portugal.63 Then, the PCA imposed a fine of €100,000 on CP Carga,64 and, last, a fine of €150,000 on Ford.65 CP Carga, Peugeot Portugal and Ford appealed against the decision to the Competition, Regulation and Supervision Court, which upheld all the appeals.66
In 2015, the PCA addressed several vertical antitrust concerns in the automobile sector. For instance, in the case against Peugeot Automobiles, this undertaking offered commitments designed to address the PCA's concerns about the alleged existence of a warranty extension agreement that prevented consumers from getting their cars repaired in independent garages. The published proposals were submitted to public consultation and were then accepted and deemed mandatory by the PCA.67 Similar commitments were offered by Ford Lusitana68 and SIVA (importer and distributor of the automobile manufacturers Audi, Volkswagen and Skoda).69 The commitments proposed were also accepted and deemed mandatory by the PCA.70
In 2016, the PCA opened proceedings against DIA Portugal (a supermarket chain) for alleged antitrust concerns arising from the company's franchise system. In order to address the PCA's concerns, DIA Portugal offered commitments designed to clarify that it did not impose minimum prices to its franchisees' network.71 The commitments were later accepted and deemed mandatory by the PCA.72
Later in the year, the PCA also issued a statement of objections against the EDP Group and the SONAE Group, having fined the companies in 2017, with a global sanction amounting to €38.3 million for alleged anticompetitive market-allocation practices in 2012.73
More recently, in 2019, following two complaints of former Super Bock Bebidas SA's distributors, the PCA sanctioned Super Bock together with one board member and one director of the company, with fines totalling €24 million, for fixing minimum resale prices and other commercial conditions of its products (i.e., beer and other beverages) in hotels, restaurants and cafes. According to the PCA, such practice was implemented through the imposition of commercial conditions, including sanctions in cases of non-compliance, in the relationships established between Super Bock's distributors and the latter's clients, that ultimately resulted in the fixing of resale prices to its distributors.
The closing of the case regarding the exclusive distribution of football rights – with the PCA stating that this issue was better solved by means of an amendment to the existing framework, in order to centralise and auction these rights, similarly to what takes place in the UK and in Spain – may hint that the PCA will, in certain cases, be more focused on promoting legislative changes than on the alteration of particular contracts.
For 2021, the PCA has established as one of its priorities the detection and investigation of anticompetitive practices, especially in sectors that be might weakened by the covid-19 pandemic. Moreover, the PCA is expected to continue its transparency efforts to promote access to its decisions and the decisions of courts of appeal, and to disseminate accurate and complete information on competition rules. As mentioned, the PCA has updated its website and decision directory, greatly facilitating research on previous decision practice as well as current proceedings.
Additionally, the PCA will continue to promote the adoption of commitments, whenever important procedural gains can be anticipated, even in cases of abuse of a dominant position.
Sectoral competition: market investigations and regulated industries
The Competition Act applies to all areas of the economy, including regulated sectors. The PCA has been monitoring several sectors in recent years, and the PCA's supervisory powers have been strengthened.
i Significant cases
So far, the most significant cases involving undertakings operating in regulated sectors were the three abuse of dominance cases brought against PT, discussed above. The existence of regulations in the telecommunications sector did not impede the application of competition rules.
The PCA has conducted sector-wide investigations and released reports on several markets over the years, including studies on consumer mobility within the retail banking market, on the liquid fuel and bottled gas retail markets, on electronic communications, on relations between large food retailers and their suppliers, and on fintech operators, digital operators, transport operators, liberal professions and ports.74
ii Trends, developments and strategies
The PCA will continue to conduct market studies and surveys in various sectors of the economy in order to better identify possible anticompetitive conduct. As previously mentioned, the PCA will be attentive on matters of possible concerted practices in public procurement, as such, in 2020, it conveyed to the Portuguese parliament its comments on the alteration of the public procurement law.
During 2015, the PCA closely monitored the port sector and, as a result of a market study on the sector, it submitted to public consultation some recommendations to enhance competition.75 In 2016, the PCA set out as priorities the monitoring of the telecommunications and gas sectors and it issued some recommendations for the activity of passenger transport in chauffeur-driven light-duty vehicles.76
In 2017, the PCA issued a report on the industry of liquefied petroleum gas in Portugal and a sectoral inquiry on the market for the supply of natural gas to industrial consumers. In both documents the PCA identified some alleged competitive concerns (in the view of the Authority) and submitted recommendations on how to mitigate them with regulatory action.77
In 2018, the PCA's study on the port sector was released, also issuing recommendations for the liberalisation of the access to port-related professions and to the promotion of conditions of competition to the awarding of concessions.78 Also in 2018, the PCA published a paper on technological innovation in the financial sector.
In 2020, the PCA issued its recommendation to Madeira's government in relation to its automobile inspection framework, recommending measures to promote the entry of new undertakings into this market.
Later in 2020, the PCA identified barriers to the opening and expansion of haemodialysis facilities, such as multiple and long-lasting procedures, legal uncertainty as regards the regulatory framework, the greater ease of expanding existing facilities than opening new ones and the assignment of patients to a facility, who tend to remain in the same facility without considering the opening of a new facility nearby as an alternative. Further to these conclusions, the PCA gave recommendations to the Portuguese government aimed at removing the identified barriers and promoting patient choice and the wellbeing of chronic kidney-disease patients.79
As indicated, the PCA's supervisory powers have been strengthened by the Competition Act and include, apart from requiring information from undertakings or associations, the possibility of carrying out inspections and audits. These inspections and audits have proven to contribute to the detection of inefficiencies by the PCA in some markets and sectors, and will increasingly do so. Additionally, as was previously mentioned, the PCA has also set as one of its priorities for 2021 the implementation of measures for removal of the barriers created by legislation, such as the statutes of liberal professions' associations and by the practices of incumbents.
Article 65 of the Competition Act establishes that aid provided by the state or any other public body may not restrict, distort or appreciably affect competition, in all or a substantial part of Portugal. The PCA may issue recommendations on any public assistance provided and monitor the implementation of those recommendations, for which purpose it may request information from any party. The recommendations are published on the PCA's website.
The PCA's powers in this matter are very limited, as the European Commission is the entity with jurisdiction to assess the compatibility of state aid with the European Union's rules on state aid. In any case, the PCA follows the European Commission's activities closely, having identified the monitoring of state aid matters as one of its international cooperation goals.80
i Significant cases
One of the most important rulings on state aid involving Portugal was the European Court of Justice's (ECJ) ruling on the appeal in the Azores case.81 The ECJ ruled on the application of territorial selectivity criteria in cases involving autonomous regions (such as the Azores region), and set the necessary conditions to be met for an autonomous region to be considered as the benchmark as opposed to the national territory as a whole.
We also highlight one of the most high-profile cases decided by the European Commission regarding state aid granted by Portugal, which involved assistance that the state gave to shipyards in Viana.82
The Portuguese banking sector, in the past few years, has also been the subject of several state aid decisions. In 2014, the European Commission found that the resolution plan of the Portuguese bank Banco Espírito Santo (BES) was in line with EU state aid rules (the European Commission assessed the plan under its rules on state aid to banks in the context of the financial crisis and acknowledged that a disorderly resolution of BES could create a serious disturbance in the Portuguese market).83 In December 2015, following the Bank of Portugal's decision to put the Portuguese bank Banif into resolution, the European Commission approved Portuguese plans to provide about €2.25 billion of state aid to cover the funding gap in the resolution of Banif, deeming that it was in line with EU state aid rules.84
In 2017, the European Commission found that Portugal's plans to strengthen the capital position of fully state-owned Caixa Geral de Depósitos (CGD) by €3.9 billion were in line with EU state aid rules,85 and, more recently, the European Commission approved the Portuguese restructuring plan and support for the sale of the bridge bank Novo Banco, completing the 2014 resolution of BES.86
In 2018, the European Commission approved under EU state aid rules a Portuguese tonnage tax scheme, which, together with a scheme to support seafarers, will encourage ship registration in Europe and contribute to the competitiveness of maritime transport while preserving employment in the sector and promoting high environmental standards.87
In 2019, the European Commission has also approved two state aid regimes. The first one, is related to the creation of a special regime of support for biomass-operated generators close to forests in Portugal, in order to promote cleaning of forests, reducing the risks of fire.88 The second one, is related to the creation of a subsidy system for the training of consultants for the agricultural and forestry sectors.89
Most recently, in December 2020, and after opening an in-depth investigation to the implementation of the Madeira Free Zone aid scheme in 2018, the European Commission concluded that said scheme was not implemented according to the European rules since it found evidence that the number of jobs taken into account by Portugal for the calculation of the aid amount under the scheme included jobs created outside the Madeira Free Zone and even outside the EU and that the profits benefiting from the tax reduction were not limited to those linked to activities effectively and materially performed in Madeira. As such, it imposed an eight-month period for the recovery of unlawful aid.90
ii Trends, developments and strategies
The banking sector in Portugal has been particularly subject, in the past few years, to state aid procedures. Further to the above-mentioned resolution cases, in should be mentioned that the capitalisation programmes for Portuguese banks91 and the creation of the Portuguese Finance Development Institution92 have followed the applicable state aid rules as established in cooperation with the European Commission. On this subject, in August 2020, the European Commission decided not to raise any objections to the creation of the Portuguese Bank of Promotion, a state-owned national promotional bank with the aim of promoting the growth of the Portuguese economy, mainly by supporting SMEs, midcaps as well as large companies considered important in terms of the national economy. 93
During the course of 2020, the European Commission did not raise any objections to any state aid schemes approved by Portugal in order to address the serious disturbance in the economy created by the covid-19 pandemic. Lastly, during the course of this last year the Commission also approved two state aid schemes to two airlines, TAP and SATA.94 Separately, the European Commission decided to open an investigation to assess whether other public support measures in favour of SATA – corresponding to three capital increases, from 2017, to partly address SATA's capital shortfalls – are in line with the state aid rules for rescue and restructuring.95
Apart from the financial sector, which may continue to be monitored, regional aid is going to be particularly relevant within the next few years. In 2014, the European Commission approved, under EU state aid rules, Portugal's state aid plan for 2014–2020, which was prolonged until the end of 2021. These guidelines set out the conditions under which Member States can grant state aid to businesses for regional development purposes and are expected to foster growth and greater cohesion in the single market.
Under the aid map currently in force, regions accounting for 69.01 per cent of Portugal's population will be eligible for regional investment aid at maximum aid intensities ranging from 25 per cent of the eligible costs of the relevant investment projects in mainland Portugal, over 35 per cent in Madeira, and up to 45 per cent in the Azores.96
It is also possible that more aid to sectors particularly affected by the covid-19 pandemic will be granted. Finally, it will also be relevant to assess the development of the investigation of the application of the aforementioned aid scheme to SATA, as well as the implementation of the EU recovery package of €1.8 trillion, known as the 'European bazooka', with more than €45 billion allocated to Portugal.
The PCA has exclusive jurisdiction to enforce the merger control rules established in the Competition Act. Only concentrations, as defined in Article 36 of the Competition Act, which meet one of the notification thresholds established in Article 37(1), are subject to merger control review. The basis of the concept of concentration lies in the notion of change of control on a lasting basis, and the definition of 'control' adopted in Article 36(3) of the Competition Act is similar to that used in the European Merger Control Regulation (i.e., the possibility of exercising decisive influence on an undertaking).
The Competition Act, unlike the EU Merger Regulation and the laws of most Member States (except for Spain), establishes alternative turnover and market share notification thresholds, even though a de minimis rule was introduced in 2012.
In brief, undertakings must notify a concentration if any of the following conditions are met:
- the combined aggregate turnover in Portugal of all the undertakings exceeds €100 million, provided that the individual turnover in Portugal of each of at least two of the undertakings concerned exceeds €5 million;
- the concentration results in the acquisition, creation or increase of a market share in Portugal equal to or greater than 50 per cent; or
- the concentration results in the acquisition, creation or increase of a market share in Portugal equal to or greater than 30 per cent and less than 50 per cent, provided that the individual turnover in Portugal of at least two of the undertakings concerned exceeds €5 million.
The time limit for the PCA to issue a decision is 30 business days for normal Phase I proceedings and 90 business days as from the initial notification for cases requiring in-depth investigations. These time limits can be suspended if additional information is requested from the parties and, in general, at the parties' request or if commitments are offered, or if the parties are invited to comment on the PCA's draft decision.
The PCA has also approved new filing forms, including, for the first time, a simplified form to be used in concentrations that, in view of certain parameters (e.g., no market overlap or limited joint market shares), will not raise competition concerns.97
Since the enactment of the Competition Act currently in force, and similarly to the EU Merger Regulation provisions, the parties no longer have a specific deadline to notify (unlike previously, where parties had seven business days to do so). The parties nevertheless are obliged to suspend the implementation of the concentration until the PCA has issued a clearance decision. Breach of this obligation entails a fine of no more than 10 per cent of the turnover of the undertaking in breach. Pursuant to the Competition Act, any act or transaction implementing the concentration prior to clearance from the PCA is unenforceable.
The most important exception to the referred standstill obligation is the possibility to implement public takeover bids, provided that, in general, the acquirer does not exercise the voting rights in the target entity until clearance is obtained.
The Competition Act now adopts the significant impediment of effective competition (SIEC) test to assess concentrations instead of the dominance test that was previously used.
Merger control decisions are subject to judicial appeal and to a special administrative appeal if the merger is blocked (although such an appeal would only be upheld if the benefits to the national economy outweigh the disadvantages to competition resulting from the prohibited merger).
i Significant cases
The PCA has extensive experience in merger cases, having reviewed and decided an average of around 50 cases a year; it has issued only seven prohibition decisions in merger control cases since its incorporation in 2003, even though there were several notifications withdrawn by the notifying parties in view of the obstacles posed by the Authority.98
In relation to these prohibitions, it is worth noting that the Minister of Economy, further to a special administrative appeal provided for in the PCA's articles of association, overturned the PCA's prohibition decision concerning a merger in the highway management sector.99 One of the PCA's prohibitions, in the media sector, was based on a binding negative opinion issued by the media sector regulator (since this decision was binding under the merger control framework).100
With regard to merger remedies the PCA's Guidelines on Merger Remedies are in line with EU law and practice. The PCA has also imposed structural and behavioural remedies on several occasions. For instance, it imposed behavioural remedies in the concentration between two Portuguese commercial airlines (TAP and PGA).101 The remedies in the clearance decision included freeing up slots at Lisbon and Oporto Airports, limiting the number of flights operated by the merged airlines on certain routes, and limitations on the prices charged. In 2015, behavioural remedies were also imposed upon two concentrations (involving the same acquiring undertaking, part of the EDP Group, which was previously the incumbent supplier of electric energy in Portugal) in the market for the production of electric energy. In both cases, the acquirer undertook to maximise the production of energy in order to avoid any negative impact on the market, in particular, a potential increase in wholesale prices.102
Regarding structural remedies, the decision practice of the PCA is also noteworthy. Remedies in two concentrations in the transportation sector included the divestment of one of the parties' operations in the inter-urban route where competition concerns were identified in the TRPN/Internorte case,103 and the approval of an up-front buyer solution in the Powervia/Laso*Auto-Laso*Probilog*Laso Ab case.104 More recently, in the Arena Atlântida/Pavilhão Atlântico*Atlântico case, a merger involving the acquisition of Pavilhão Atlântico (the main indoor arena in Lisbon), one of the shareholders of the acquiring undertaking committed to divest its shareholding in a ticketing services company, since the PCA had identified the referred shareholding as a vertical restraint to competition.105
In 2018, divestment remedies were also offered in the Rubis/Repsol GLP case in order to overcome the horizontal concerns identified by the PCA.106 It should be mentioned that, for the first time, the divestment in question was made through a 'fix it first' solution (i.e., with a suitable buyer already found and accepted by the PCA prior to the clearance decision).
In 2020, in the Pigments/Ativos Ferro case, a transnational concentration in the tiles and pigments sector, the acquiring company committed to divest the totality of the targets' business, in Portugal. 107
In 2020, the PCA approved 45 transactions without conditions.
In 2020, the PCA acknowledged in other two opportunities (Magnum Capital II*Alantra/S.Roque and FSG Saúde/Imóvel) that the notification was not mandatory, given that the thresholds established in Article 37(1) were not met.
As regards the imposition of sanctions on undertakings that failed to file a concentration, early in 2013 the PCA imposed fines amounting to €149,278.79 for failure to notify a concentration in the pharmaceutical sector (this decision was appealed based on formal grounds and was reissued by the PCA in 2014).108 In 2017 the PCA imposed fines amounting to €38,500 for failure to notify a concentration in the dental clinics sector, following a settlement procedure.109
Most notably, in 2019, in the Grupo HPA Saúde/Hospital São Gonçalo de Lagos merger, the PCA adopted a clearance decision based on the failing firm defence, this was the first time this argument was successfully used in Portugal.110 However, the PCA also started an investigation concerning the failure to timely notify this merger, concluded in 2020, with the application of a fine of €155,000. This was the first case in which the PCA accepted the payment by instalments of the fine.111
Also in 2019, the PCA started an investigation against HCapital, SCA - SICAR for failing to notify the acquisition of control over Solzaima in 2016. The transaction was notified in February 2019 and approved without condition. After the approval, the PCA initiated a gun jumping investigation that can culminate in fines up to 10 per cent of the turnover of the offending undertaking in the year immediately preceding the final judgment issued by the PCA.112
More recently, the PCA once again demonstrated its growing attention to gun-jumping, having in September 2020 issued a new statement of objections for failure to notify a merger related to the acquisition of a real estate investment fund, a concentration that was, furthermore, found to raise competition concerns and had to be abandoned by the parties.113
ii Trends, developments and strategies
The simplified filing form and pre-notification contacts have been increasingly used, enabling a swifter assessment and earlier decisions regarding uncomplicated matters.114 The PCA is expected to continue to promote the use of the simplified filing form, as well as pre-notification contacts in order to deliver swifter decisions and enhance transparency in the market.
The PCA also seems to continue strengthening its demands in terms of remedies, demanding structural remedies in the most complicated cases of 2019.
In 2020, the PCA has also stated that one of its priorities for that year was still the implementation of more efficient and quicker merger control proceedings. According to its 2021 priorities, the PCA reiterates it commitment to maintain an independent and rigorous merger review procedure.
It seems that the PCA's merger control decisions are being increasingly subject to judicial review. In 2015, the Portuguese Competition, Regulation and Supervision Court rejected, on the one hand, the appeal by Media, Zon Optimus and Portugal Telecom related to the PCA's decision to initiate an in-depth investigation of this concentration and, on the other hand, these undertakings claim that the concentration had been tacitly approved.115 Also in 2015, this court confirmed the PCA's decision in the Arena Atlântida/Pavilhão Atlântico*Atlântico case.116 In 2016, the Competition, Regulation and Supervision Court confirmed117 the PCA's clearance, after an in-depth investigation, of the SUMA/EGF concentration (a merger decision related to a reprivatisation in the waste sector),118 which was further confirmed, in 2017, by the Portuguese Supreme Court of Justice (STJ). Before its final decision, the Competition, Regulation and Supervision Court had rejected, in two separate proceedings, the adoption of interim measures to temporarily suspend the effects of the decision.119
The PCA continues to actively pursue the goal of protecting and promoting competition in the Portuguese economy. It is becoming more dynamic, has been investing in its technical capacity, and is determined to contribute to a sound culture of competition policy in Portugal.
The PCA's focus continues to be combating cartels and anticompetitive practices, being particularly vigilant within the context of trade associations, public tenders and of the up-and-coming digital economy. The PCA will also closely monitor recent mergers, in order to detect eventual gun-jumping cases.
In this context, the next significant development in terms of the legal framework relates to the transposition of the ECN+ Directive, for which a proposal of draft legislation prepared by the PCA was submitted to the Portuguese government on 3 April 2020. For instance, it expressly provides that the PCA shall be able to access any technological device, including smartphones, tablets and cloud servers, and it extends the type of elements that may be covered by PCA raids and seizure procedures to include explicitly read and unread emails and instant messaging systems.120 The modifications to the Competition Act that may result from the transposition of the ECN+ Directive are likely to represent a significant change to Portuguese competition law, since it will give the PCA important new powers, and even more so considering the PCA has been much more proactive in recent years, developing a more aggressive competition enforcement policy in various sectors.
Additionally, in 2021 the PCA is expected to direct its focus to the promotion of competition in sectors that are especially vulnerable to exploitation in the context of the covid-19 pandemic. In addition, the PCA also seems to be concerned with the economic recuperations that might translate into an increase in actions directed at supporting the approval or alteration of legislation in order to increase competition and innovation in certain sectors, such as those of liberal professions.
1 Tânia Luísa Faria is counsel, Margot Lopes Martins is a junior associate and Guilherme Neves Lima is a trainee lawyer at Uría Menéndez Proença de Carvalho.
3 See Press Release 21/2019, available at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201921.aspx?lst=1&Cat=2019.
4 See the PCA's Press Release 05/2020, of 23 March 2020, available at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202005.aspx?lst=1&Cat=2020.
5 PCA's Press Release of 21 September 2018. Protocol available at http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Documents/Protocolo%20entre%20a%20AdC%20e%20o%20Infarmed.pdf.
6 PCA's Press Release of 25 February 2019. Protocol available at http://www.concorrencia.pt/vPT/Sistemas_da_Concorrencia/Cooperação_Institucional/Documents/Protocolo%20de%20acesso%20à%20Biblioteca%20de%20Concorrência%20Abel%20Mateus%20pelo%20TCRS%20(Tribunal%20de%20Concorrência,%20Regulação%20e%20Supervisão).pdf.
7 See Article 75 of the Competition Act, as well as the PCA's Informative Communication on the Portuguese leniency programme, available at http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Documents/DR_NOTA%20INFORMATIVA_CLEMENCIA_PosPublReguDR_03_01-2013.pdf.
8 As stated in the PCA's Guidelines on the calculation of fines, available at http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Documents/Linhas_de_Orientação_Coimas_DEZ2012.pdf.
9 In other antitrust infringements, not connected to cartels, the PCA may decide to close an administrative procedure if it receives what it considers to be adequate remedy proposals from the undertakings. In that case, there will be no infringement under the Competition Act, but the undertakings must implement the remedies agreed with the PCA. The PCA may decide to reopen the procedure under certain circumstances within the next two years.
10 Case No. PRC/2003/6, 28 December 2004.
11 Case No. PRC/2005/25, 11 July 2006.
12 Case No. PRC/2004/06, 3 July 2009, the case was decided in 2005, overturned by the Commercial Court of Lisbon and subject to a new decision of the PCA in 2009.
13 Case No. PRC/2007/02, 31 July 2012, the case resulted from a leniency application from a former director of one of the undertakings involved in the cartel.
14 Case No. PRC/2011/01, 18 July 2013, the case resulted from a leniency application.
15 Case No. PRC/2014/2, 9 July 2015, the case resulted from a leniency application.
16 Case No. PRC/2009/10, 1 June 2011.
17 Case No. PRC/2011/10, 30 May 2016, the case resulted from a leniency application.
18 Case No. PRC/2017/10, 30 July 2019, the case resulted from a leniency application.
19 Case No. PRC/2016/6, three of the five participants received a reduction of the fine based on the settlement procedure, while the remaining undertakings received a higher fine and, additionally, a ban of up to two years on participation in public tenders (which is the first case in which the PCA imposes this type of sanction).
20 Case No. PRC/2018/5, 3 December 2020, the case resulted from a leniency application.
21 Case No. PRC/2017/10, 30 July 2019; PCA's Press Release 16/2019, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201916.aspx?lst=1&Cat=2019.
22 See PCA's Press Release 20/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202020.aspx.
23 Press Release 11/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202011.aspx?lst=1&Cat=2020.
24 PCA's Press Release 22/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202022.aspx.
25 See PCA's Press Releases 09/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202009.aspx?lst=1&Cat=2020; 10/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202010.aspx?lst=1&Cat=2020; and 18/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202018.aspx.
27 Case No. PRC/2010/8, 13 December 2012.
28 Case No. PRC/2011/01, 18 July 2013.
29 Case No. PRC/2005/4, 10 January 2008.
30 Case No. PRC/2014/2, 9 July 2015 (Pre-Fabricated Modules cartel).
31 PCA's Press Release 20/2018, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201820.aspx?lst=1&Cat=2018..
32 PCA's Press Release 05/2019, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201905.aspx?lst=1&Cat=2019.).
33 PCA's Press Release 10/2019, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201910.aspx?lst=1&Cat=2019.
34 Case No. PRC/2016/6, 3 March 2020. PCA's Press Release 02/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202002.aspx?lst=1&Cat=2020.
35 Case No. PRC/2004/07, 30 December 2005.
36 Case No. PRC/2004/23, 29 January 2009.
37 Case No. PRC/2006/12, 31 December 2010.
38 Case No. PRC/2016/8, 28 September 2017.
39 Case No. PRC/2015/9, 6 November 2017 and Case No. PRC/2015/8, 21 December 2017.
40 Case No. PRC/2018/4, 6 June 2019.
41 PCA's Press Release 14/2019, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202016.aspx?lst=1&Cat=2020.
42 PCA's Press Release Case No. PRC/2018/3, 20 October 2020.
43 PCA's Press Releases of 12 July 2005 and 29 of August 2005 and Press Release 14/2006 of 31 May 2006.
44 PCA's Press Release 18/2016, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201618.aspx?lst=1&Cat=2016.
45 PCA's Press Release 23/2016, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201623.aspx?lst=1&Cat=2016.
46 PCA's Press Release 17/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202017.aspx?lst=1&Cat=2020.PCA's Press Release.
47 PCA's Press Release 09/2019, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201909.aspx?lst=1&Cat=2019.
48 PCA's Press Release PCA's Press Release 8/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202008.aspx?lst=1&Cat=2020.
49 PCA's Press Release of 24 June 2012.
50 PCA's Press Release of 7 October 2020.
51 An undertaking is considered to be in a situation of economic dependence with regard to another undertaking if it does not have an equivalent alternative to contracting with that undertaking (i.e., when the good or service at issue is provided by a limited number of undertakings and the undertaking would be unable to obtain identical conditions from other commercial partners within a reasonable period).
52 Case No. PRC/2003/2, 1 August 2007; Case No. PRC/2004/1, 28 August 2008; Case No. PRC/2003/5, 28 September 2009; PCA press releases of 1 September 2008, of 2 September 2009 and of 2 August 2007.
53 PCA's Press Release 20/2009, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Arquivo/Pages/2009_Competition-Authority-instructs-Sugalidal-to-stop-harmful-practices.aspx?lst=1&Cat=2009.
54 Case No. PRC/2010/2, 14 June 2013; PCA's Press Release of 20 June 2013.
55 Case No. PRC/2009/13, 22 December 2015; PCA's Press Release 31/2015 of 31 December 2015 and 20/2016 of 20 October 2016.
56 Case No. 36/16.0YUSTR, 20 October 2016; PCA's Press Release 08/2018 of 5 July 2018.
57 PCA's Press Release 2 October 2007.
58 Case No. PRC/2010/4, 15 June 2012.
59 Case No. PRC/2011/13, 29 January 2015; PCA's Press Release 01/2015, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201501.aspx?lst=1&Cat=2015.
60 Case No. PRC/2016/2, 21 December 2018.
61 Case No. PRC/2016/5, 17 September 2019; PCA's Press Release 19/2019, available at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201919.aspx?lst=1&Cat=2019.
62 Case No. PRC/2003/2, 1 August 2007.
63 PCA's Press Release 12/2015, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201512.aspx?lst=1&Cat=2015.
64 PCA's Press Release 15/2015, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201515.aspx?lst=1&Cat=2015.
65 PCA's Press Release 21/2015, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201521.aspx?lst=1&Cat=2015.
66 PCA's Press Release 29/2015 of 16 December 2015, 19/2016 of 19 October 2016 and 15/2017 of 13 October 2017.
67 PCA's Press Releases 17/2014 of 30 December 2014 and 07/2015 of 23 March 2015.
68 PCA's Press Release 16/2015, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201516.aspx?lst=1&Cat=2015.
69 PCA's Press Release 28/2015, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201528.aspx?lst=1&Cat=2015.
70 PCA's Press Releases 20/2015 and 05/2016, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201520.aspx?lst=1&Cat=2015 and http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201605.aspx?lst=1&Cat=2016.
71 PCA's Press Release 07/2016, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201607.aspx?lst=1&Cat=2016.
72 PCA's Press Release 14/2016, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201614.aspx?lst=1&Cat=2016.
73 PCA's Press Releases 16/2016 and 05/2017, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201616.aspx?lst=1&Cat=2016 and http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201705.aspx?lst=1&Cat=2017.
75 PCA's Press Release 13/2015 of 13 July 2015.
76 PCA's Press Release 15/2016 of 20 July 2016.
77 PCA's Press Release 03/2017 and 17/2017, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201703.aspx?lst=1&Cat=2017 and http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201717.aspx?lst=1&Cat=2017.
78 PCA's Press Release 21/2018, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201821.aspx?lst=1&Cat=2018.
79 PCA's Press Release 19/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202019.aspx?lst=1&Cat=2020.
80 See the presentation of the chairman of the PCA's board, available at: http://www.concorrencia.pt/vPT/Noticias_Eventos/Intervencoes_publicas/Documents/VFapresentação%20COFAP%2018%20fev%202015_VF.pdf.
81 Case C-88/03 Portugal v. Commission.
82 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-13-33_en.htm.
83 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-14-901_en.htm.
84 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-15-6380_en.htm.
85 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-17-556_en.htm.
86 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-17-3865_en.htm.
87 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-18-2842_en.htm.
88 See the letter to the Member State available at https://ec.europa.eu/competition/state_aid/cases1/201921/278527_2070161_121_2.pdf
89 See the letter to the Member State available at https://ec.europa.eu/competition/state_aid/cases1/201913/273680_2056551_148_2.pdf
90 See the European Commission press release available at https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2314.
91 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-09-818_en.htm?locale=en.
92 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-14-1214_en.htm.
93 See the letter to the Member State available at https://ec.europa.eu/competition/state_aid/cases1/202035/286869_2183623_105_2.pdf.
94 See, respectively, the letters to the Member State available at https://ec.europa.eu/competition/state_aid/cases1/202027/286498_2170013_65_2.pdf and https://ec.europa.eu/competition/state_aid/cases1/202035/287743_2183522_1_2.pdf.
95 See the European Commission press release, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1489.
96 See the European Commission press release available at http://europa.eu/rapid/press-release_IP-14-666_en.htm.
97 PCA Regulation No. 60/2013, of 14 February.
98 Case Ccent. 37/2004 – Barraqueiro/Arriva, case Ccent. 45/2004 – Petrogal/Esso; case Ccent. 22/2005 – VIA Oeste (Brisa)/Auto-Estradas do Oeste/Auto-Estradas do Atlântico, case Ccent. 12/2009 – TAP/SPdH; case 41/2009 – Ongoing/Prisa/Media Capital and case Ccent. 4/2013 – Controlinveste*Zon Optimus*PT/Sport TV*Sportinveste*PPTV; case Ccent. 9/2019 – Fidelidade SGOII/ Saldeinveste*IMOFID; Case Ccent.51/2019 – RBI/Grupo Fundão.
99 Case Ccent.22/2005 – VIA Oeste (Brisa)/Auto-Estradas do Oeste/Auto-Estradas do Atlântico.
100 Case Ccent.41/2009 – Ongoing/Prisa/Media Capital.
101 Case Ccent.57/2006 – TAP/PGA.
102 Cases Ccent. 9/2015 – EDP Renewables/Ativos ENEOP and Ccent. 55/2015 – EDP Renewables/Sociedades Ventinveste.
103 Case Ccent. 49/2010 – TRPN/Internorte.
104 Case Ccent. 16/2011– Powervia/Laso*Auto-Laso*Probilog*Laso Ab.
105 Case Ccent. 38/2012 – Arena Atlântida/Pavilhão Atlântico*Atlântico.
106 Case Ccent. 37/2017 – RUBIS/Ativos Repsol.
107 Case Ccent. 16/2020 – Pigments/Ativos Ferro.
108 PCA's Press Release of 9 January 2013.
109 PCA's Press Release 22/2017, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201722.aspx?lst=1&Cat=2017.
110 PCA's Press Release 18/2019, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201918.aspx?lst=1&Cat=2019.
111 PCA's Press Release 04/2020, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202004.aspx?lst=1&Cat=2020.
112 PCA's Press Release 20/2019, available in English at http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_201920.aspx?lst=1&Cat=2019.
113 PCA's Press Release 13/2020, available in English at http://concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202013.aspx?lst=1&Cat=2020.
114 See the PCA press presentation available at http://www.concorrencia.pt/vPT/Noticias_Eventos/Intervencoes_publicas/Documents/apresentação%20COFAP%2018%20fev%202015_v3.pdf.
115 PCA's Press Release available at http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Paginas/Comunicado_AdC_201502.aspx?lst=1&Cat=2015.
117 Competition, Regulation and Supervision Court, 11 April 2016, case 8/15.1YQSTR.
118 PCA's Press Release available at http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Paginas/Comunicado_AdC_201527.aspx?lst=1&Cat=2015.
119 STJ, 22 February 2017, case 8/15.1YQSTR.S1.
120 For further information, please see: Nuno Salazar Casanova, Tânia Luísa Faria, Duarte Peres and Margot Lopes Martins 'A fish out of water – critical analysis of the AdC's draft proposal for the transposition of the ECN+ Directive into Portuguese law', Competition and Regulation Journal, No. 42 & 43.