PORTUGAL Law and Practice Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
mating the harm caused by the infringement. Howev - er, it retains the discretion to decline such assistance, provided it offers a reasoned justification for doing so. 2.5 Pass-On Defence Portuguese law expressly recognises the “pass-on” defence in the context of private antitrust damages actions. A defendant may argue that the claimant did not suffer the full extent of the alleged overcharge because part or all of it was passed on to customers further down the supply chain. Where this defence is invoked, the burden lies with the defendant to prove that the overcharge was, in fact, transmitted to sub - sequent purchasers. In parallel, indirect purchasers, ie, those not directly affected by the original transaction but who claim to have ultimately borne the cost of the overcharge, may also bring damages claims. In such cases, the indirect purchaser must establish the existence of the over - charge and the extent to which it was passed through the supply chain to them. To ease this evidentiary burden, the Private Damages Act introduces a rebuttable presumption in favour of the indirect purchaser. The court will presume that the overcharge was passed on, provided the claimant can demonstrate that the infringement resulted in an over - charge to the direct purchaser, and can demonstrate that the claimant acquired either the affected goods or services, or products derived from or incorporat - ing them. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations In Portugal, private damages actions for competition law infringements are subject to a five-year limitation period. This period does not begin until the claimant has, or reasonably should have, knowledge of four key elements: the conduct in question, its anti-competitive nature, the identity of the infringing party, and the fact that harm was suffered as a result. Importantly, the limitation period will not commence until the infringing behaviour has ceased.
The running of the limitation period may also be sus - pended under specific circumstances. If a competi - tion authority initiates an investigation concerning the same conduct that underpins the damages claim, the limitation period is paused until one year after the final decision of the authority or any resulting court judg - ment becomes final and binding. Suspension also applies where the parties are engaged in an ADR process, in which case the limita - tion period remains on hold for the duration of those proceedings. In addition, the limitation period is interrupted when the alleged infringer is formally notified – whether through a summons or other judicial act – of the claim - ant’s intention to seek compensation. This interruption resets the limitation period, ensuring that claimants are not penalised for taking early legal steps to pre - serve their rights. 3.2 Typical Length of Private Antitrust Litigation Private antitrust litigation in Portugal typically takes approximately five years to reach a final judgment, with this timeframe reflecting the experience of national courts, especially in complex or multiparty cases. Courts have the discretion to suspend pro - ceedings when the case’s outcome depends on an ongoing competition authority investigation, a non- final administrative decision or an unresolved appeal. Additionally, courts may delay proceedings to ensure consistency with EU competition law and to avoid conflicting rulings or divergent interpretations. Parties may jointly request a temporary suspension, usually limited to three months, provided it does not affect the scheduling of the final hearing.
4. Class and Collective Actions 4.1 Statutory Basis
The right to bring class actions is enshrined in the Portuguese Constitution, which grants any citizen – whether acting individually or through associations established to protect collective interests – the ability to initiate such actions in accordance with the law. The general legal regime governing class actions is
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