PORTUGAL Law and Practice Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
Ultimately, expert evidence is subject to the court’s free evaluation, meaning judges are not obliged to accept the experts’ conclusions but consider them alongside all other evidence presented. 8. Damages 8.1 Damages: Assessment, Passing On and Interest In Portugal, damages awarded in competition law cases are strictly compensatory; punitive or exem - plary damages are not available. The purpose of damages is to ensure full reparation for the harm suffered, which encompasses actual losses, lost profits, and interest accruing from the date the damage occurred until payment is made. When precise quantification of damages proves challenging or impossible, courts have the discretion to estimate the amount based on fairness and the evidence before them. In cartel cases, there is a legal presumption that harm has occurred, though defendants retain the right to challenge this presumption. The passing-on defence is recognised under Portu - guese law. Defendants may argue that claimants have passed on all or part of the overcharge to downstream customers, thereby reducing the damages payable. This defence also allows indirect purchasers to bring claims, reflecting losses passed further along the sup - ply chain. Interest is calculated from the date the damage was sustained until full payment is made, forming an inte - gral part of the compensation awarded.
Parent companies or controlling entities that exercised decisive influence over the infringing company during the violation may also be held liable. The Private Dam - ages Act establishes that a rebuttable presumption of such influence arises if the parent or controller owned 90% or more of the infringer’s share capital. Addition - ally, a subsidiary that is not directly named in the pro - ceedings or the final decision can still be held liable if it forms part of the same economic unit as the parent company, as established by Case C-882/19, SUMAL. There are limited exceptions for certain small and medium-sized enterprises (SMEs), which may benefit from reduced liability. Specifically, SMEs with a mar - ket share below 5% during the infringement period are only liable to their direct and indirect suppliers or customers, provided that applying full joint liability would threaten their viability or significantly reduce the value of their assets. Liability to other injured parties arises only if full compensation cannot be recovered from the other infringers. However, these exceptions do not apply if the SME led the infringement, coerced others into participating, or has a prior competition law infringement record. Undertakings granted immunity from fines remain jointly and severally liable to their direct or indirect pur - chasers or suppliers. They may also be liable to other affected parties if compensation cannot be secured from the remaining infringers. 9.2 Contribution In Portuguese law, there is a clear legal framework for claiming contributions from third parties in com - petition damages cases. Article 5 (5) of the Private Damages Act establishes that an infringer that has compensated harmed parties may seek contribution from co-infringers, proportionate to each party’s share of responsibility for the damage caused. As a general rule, this share is presumed to correspond to the average market share held by each infringer in the relevant markets over the period of their participa - tion in the infringement. This presumption, however, is rebuttable, and other factors, such as the specific role and conduct of each party, may be considered in determining relative liability.
9. Liability and Contribution 9.1 Joint and Several Liability
In Portugal, liability for competition law infringements committed jointly by undertakings – such as in cartel cases – is joint and several. This means that compa - nies involved in the same anti-competitive conduct are collectively responsible for the full extent of the harm caused.
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