PORTUGAL Trends and Developments Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
III) AdC revised fine calculation guidelines The AdC updated its ‘Guidelines on the Methodology for Calculating Fines’, originally issued in 2012. While the core structure for setting fines remains unchanged, the revisions introduce several adjustments aimed at increasing clarity and proportionality in enforcement. One major change concerns the treatment of infringe - ments’ duration. The weight assigned to each year of a violation has been reduced, and any period beyond ten years is now excluded from the calculation. For serious offences, such as exclusionary abuses or collusion, the base fine may now include an added fraction of the relevant turnover ranging from 15% to 30%, up from the previous ceiling of 25%. In the second stage, which adjusts the base amount, the AdC has introduced a time limit for considering past offences in recidivism assessments, aligning with the legal limitation period. Aggravating factors can increase the fine by up to 50%, while mitigating factors may lead to reductions of 50% or more. Finally, in the proportionality review phase, the AdC has clarified when an undertaking’s inability to pay may be taken into account in setting the final fine. Procedural challenges Despite this assertive stance, the AdC has faced nota - ble procedural challenges. A long-running investiga - tion into alleged information exchange among banks was recently derailed after the courts ruled the case time-barred. Meanwhile, ongoing legal uncertainty surrounds the AdC’s authority to seize professional email communications in competition proceedings, with questions over the constitutionality of such measures now pending before both the Portuguese Constitutional Court and the Court of Justice of the European Union (CJEU). I) Banking investigation outcome put on hold In 2019, the AdC imposed fines totalling EUR225 mil - lion on 14 banks operating in Portugal, finding that they had participated in concerted practices involving the exchange of commercially sensitive information over more than a decade. According to the AdC, the
banks shared confidential data regarding future mort - gage spreads and past credit approvals. The decision was challenged before the Competition, Regulation and Supervision Court, which upheld the AdC’s conclusions. This court confirmed that the conduct amounted to a restriction of competition by object, in line with guidance provided by the CJEU in a preliminary ruling on the matter (C-298/22). However, the Lisbon Court of Appeal later took a dif - ferent stance. In a February 2025 judgment, it ruled that the proceedings were statute-barred and ordered the case to be closed on procedural grounds. The AdC has since filed an appeal before the Constitu - tional Court, contesting the limitation ruling. On 7 June 2025, the Portuguese Constitutional Court declined to hear the appeals lodged by the AdC and the Public Prosecutor’s Office in the case. The appeals concerned the ruling of the Lisbon Court of Appeal, which found that any prosecution of the alleged prac - tice was time-barred. Consequently, the Portuguese Constitutional Court stated that it lacked jurisdiction to hear the appeal. The AdC has announced its intention to challenge this decision. This is the final procedural attempt to over - turn the judicial interpretation of the statute of limita - tions. The case has lasted more than a decade and has involved a series of procedural challenges, includ - ing a request for a preliminary ruling from the CJEU. II) Constitutional and EU scrutiny over email seizures in competition investigations The legal framework governing the AdC’s power to access email communications during investigations is currently under intense constitutional and European scrutiny. Portuguese law mandates judicial authorisation for document seizures, typically by the Public Prosecu - tor, except in particularly sensitive contexts, such as law firms, private homes or medical practices, where a judge’s authorisation is required.
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