PORTUGAL Law and Practice Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
The CJEU’s judgment of 29 January 2026 in Case C-286/24, Meliá Hotels International v Associação Ius Omnibus , delivered on a reference from the Portu - guese Supreme Court of Justice, clarified the thresh - old for obtaining disclosure of evidence under Article 5 (1) of Directive 2014/104/EU. The Court held that a European Commission decision finding an infringe - ment by object, adopted under the settlement pro - cedure, is sufficient only to establish the plausibility of the infringement itself, but not the plausibility of the damage or the causal link, both of which must be demonstrated. As regards the balance of probabilities, the Court confirmed that the standard of plausibility is not equivalent to proving liability; rather, it is sufficient for the claimant to show that it is reasonably plausi - ble that the conditions for liability are met. 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 process. This procedural mechanism ensures consistency between public and private enforcement while avoiding con - flicting 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 - 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
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