PORTUGAL Law and Practice Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
Appeals from decisions of the Competition, Regulation and Supervision Court are heard by the Lisbon Court of Appeal, which includes a specialised chamber for competition and regulatory matters. While appellate review is generally limited to matters of law, the Court may also examine factual findings in exceptional cas - es – particularly where evidentiary assessments by the lower court are alleged to breach specific legal standards governing the admissibility or probative value of evidence. In cases that raise purely legal questions, and sub - ject to procedural requirements, parties may further appeal to the Supreme Court of Justice, providing an additional layer of scrutiny to ensure uniform interpre - tation and application of competition law. Additionally, where proceedings involve questions concerning the interpretation of EU law, Portuguese courts may, and sometimes must, refer such matters to the Court of Justice of the European Union for a pre - liminary ruling, in accordance with Article 267 of the TFEU. This mechanism ensures consistency between domestic adjudication and EU legal standards. Finally, claims involving competition law breaches may also be submitted to arbitration, and there is at least one known instance of high-value arbitration proceedings centred on alleged anti-competitive con - duct, confirming the potential for alternative dispute resolution (ADR) in this field. 2.3 Impact of Competition Authorities A prior infringement decision by a competition author - ity is not a prerequisite for bringing a private antitrust action in Portugal. Claimants are entitled to initiate standalone proceedings regardless of whether a pub - lic enforcement authority has ruled on the matter. However, a decision of the AdC that is final consti - tutes an irrebuttable presumption of the infringement, including its material, personal, temporal and territo - rial scope. In such cases, the court adjudicating the private claim is bound by the findings of the AdC or the appellate court with respect to the existence and characteristics of the violation.
By contrast, final decisions issued by competition authorities in other EU member states give rise to a rebuttable presumption regarding the same elements of infringement. While these findings are persuasive and benefit from a presumption of accuracy, they do not bind the Portuguese courts and may be chal - lenged by the defendant. Where a private action is brought in parallel with an ongoing investigation by a competition authority, or relies on a non-final administrative or judicial decision, the court may, at its discretion, suspend proceedings pending the outcome of the public enforcement pro - cess. This procedural mechanism ensures consist - ency between public and private enforcement while avoiding conflicting rulings. 2.4 Proof In private antitrust litigation in Portugal, the allocation of the burden of proof is governed by general civil law principles, according to which each party must sub - stantiate the facts it alleges. This default rule is sub - ject to modification where legal presumptions apply, potentially easing or shifting the evidentiary burden. The evidentiary framework differs depending on the nature of the action. In standalone claims, where no prior infringement decision has been issued by a com - petition authority, the claimant must demonstrate that a competition law infringement occurred, that harm was suffered, and that a causal nexus exists between the two. Conversely, in follow-on actions – initiated after a final infringement decision from the AdC or another com - petent authority – the existence of the infringement is presumed. While this presumption simplifies the claimant’s task, it does not dispense with the need to prove the existence and extent of the harm, as well as the causal link to the infringement. The defendant bears the responsibility of counter - ing the claimant’s assertions by presenting facts that negate or diminish the alleged infringement, damage or causality. Courts may also draw on institutional support in quan - tifying damages. The AdC may assist the court in esti -
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