PORTUGAL Law and Practice Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
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. 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. 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 9. Liability and Contribution 9.1 Joint and Several Liability
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. This right to contribution is particularly relevant in cases where damages have been paid to individuals or entities that are not direct or indirect purchasers or suppliers of the infringers, as specified in Article 5 (6) of the Act. Injunctive relief is available under Portuguese law and plays an important role in ensuring the effectiveness of civil claims, including those relating to competition law. Such relief is granted through urgent proceed - ings, which are usually decided within weeks if the applicant can demonstrate sufficient legal and factual grounds. To obtain an injunction, the applicant must credibly demonstrate the existence of a substantive right and show that this right is under threat due to the respond - ent’s conduct. The applicant must also show that the 10. Other Remedies 10.1 Injunctions
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