PORTUGAL Trends and Developments Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
In 2023, the Portuguese Constitutional Court held that Article 18 of the Competition Act, which allows the AdC to seize, collect and examine opened emails with prior authorisation from the Public Prosecutor, was unconstitutional. The Constitutional Court found that such access infringed protections under Article 34 (4) of the Portuguese Constitution. However, in a signifi - cant reversal, the Court changed course in 2024 (Rul - ing No. 533/2024), finding that the measure did not interfere with data transmission and confirming the Public Prosecutor’s authority to authorise such sei - zures. The ruling, which was split with four dissenting votes, arose from a concrete constitutional review and applies only to the case in question. A future ruling could trigger an abstract review with general binding effect (erga omnes). The issue may ultimately be settled at the Europe - an level. The Grand Chamber of the CJEU recently heard Imagens Médicas Integradas, Synlabhealth II and SIBS (Joined Cases C-258/23, C-259/23 and C-260/23), where the central question concerns the interpretation of Article 7 of the Charter of Fundamen - tal Rights of the European Union, in the context of proceedings concerning the lawfulness of the seizure of emails of employees of the applicants, as part of the AdC’s investigations into suspected infringements of the Portuguese rules on competition and of Article 101 or 102 of the Treaty on the Functioning of the European Union. The CJEU’s forthcoming judgment is expected to pro - vide critical guidance on the admissibility of digital evidence gathered in the course of competition inves - tigations across the EU. AdC’s 2025 enforcement agenda: priorities and innovation In January 2025, the AdC published its updated policy priorities, outlining strategic goals that com - bine domestic enforcement with alignment with EU- level initiatives. It announced a structured dialogue with key economic sectors to promote awareness of competition rules and compliance culture. It reit - erated its commitment to digital markets, including increased scrutiny of generative AI and enhanced co- operation with European counterparts. In parallel, it announced the deployment of AI-powered forensic
tools to strengthen the detection and investigation of unlawful practices. The AdC also reaffirmed its 2024 enforcement pri - orities, particularly the continued focus on collusion in public procurement, anti-competitive conduct in labour markets such as no-poach agreements, and abuses of dominance in critical sectors. In merger control, the AdC signalled its intent to par - ticipate in the EU-level reform of merger rules, par - ticularly as they relate to innovation-driven and digital markets. It also emphasised the need for vigilance over so-called killer acquisitions in the tech and plat - form economy. Private enforcement Private enforcement has expanded significantly since 2020, catalysed by an increasingly active AdC and the emergence of a procedural framework that favours claimants. Portugal’s opt-out collective action regime, together with low litigation costs, limited adverse costs exposure and the absence of a certification stage, has encouraged a surge of antitrust litigation. Many of these claims have followed on from the AdC’s hub-and-spoke decisions in the food and beverage sector, which are currently under appeal before the Competition, Regulation and Supervision Court. In late 2024, the consumer association Ius Omnibus filed a new wave of damages actions before the Court against several undertakings previously sanctioned by the AdC. These include claims against Unilever, Bimbo, Johnson & Johnson, Sumol+Compal and Beiersdorf, among others. Although formally styled as standalone actions, they rely heavily on the factual and evidentiary groundwork laid in the AdC’s infringe - ment decisions. Portuguese Supreme Court issues landmark ruling in first private damages case On 13 February 2025, the Portuguese Supreme Court of Justice (STJ) delivered its first judgment in a civil damages action arising from anti-competitive conduct under Portugal’s Private Enforcement Law (Law No. 23/2018, which transposes Directive 2014/104/EU).
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