PORTUGAL Trends and Developments Contributed by: José Luís da Cruz Vilaça and Mariana Tavares, Antas da Cunha Ecija
• Scope of disclosure : Article 5 (1) of the EU Dam - ages Directive (2014/104/EU) applies to disclosure actions brought before a damages claim is filed, not only to disclosure within pending proceedings. A narrower reading, the Court held, would under - mine the Directive’s effectiveness objective. • Plausibility standard : The “plausibility” threshold governing pre-action disclosure is deliberately lower than the “more likely than not” standard. This reflects the inherent structural information asym - metry in antitrust cases, whereby claimants only need to rely on facts and evidence that are “rea - sonably available” to them. The practical significance of this ruling for the Portu - guese market is considerable. Under the existing Por - tuguese procedural framework, disclosure requests must be targeted and proportionate; there is no broad US-style discovery. While the Meliá Hotels ruling does not change this proportionality requirement, it con - firms that the disclosure threshold is low and available even before formal proceedings are launched. This is expected to encourage consumer associations and other prospective claimants to seek pre-action disclo - sure earlier on, before committing to full proceedings. This will strengthen the evidentiary basis of claims from the outset and potentially increase settlement pressure on prospective defendants. Litigation Funding Under Scrutiny at the CJEU In Case C-431/26 – Associação Ius Omnibus III , the CJEU will consider whether certain third-party litiga - tion funding arrangements may undermine the effec - tive enforcement of EU competition law. On 28 April 2026, the TCRS referred three questions to the CJEU under Article 267 TFEU in Associação Ius Omnibus v Abanca Corporación Bancaria . Ius Omnibus brought the proceedings in 2024 against 12 banks, seeking compensation for consumers alleged - ly harmed by a cartel in breach of EU competition law. The action is financed by a third-party funder. While the funder has no right to intervene in or determine the conduct of the proceedings, if the action succeeds, they are entitled to receive an amount determined by the Portuguese court as “reasonable and equitable”.
Against this background, the TCRS has referred ques - tions to the CJEU concerning the independence of representative entities bringing collective actions. The TCRS’s questions focus particularly on whether a claimant association can satisfy the applicable inde - pendence requirements where its activities are finan - cially supported by a funder, and where members of its governing body receive remuneration from that funder. The referring court’s reasoning also considers the potential influence of funders and lawyers over the association, as well as the possibility of conflicts of interest between the funder and the consumers whose interests the association seeks to represent. The scope of the referral is closely tied to the specific circumstances of the case, particularly the funding structure and governance of the consumer associa - tion concerned. What Lies Ahead: Implications for Companies and Lawyers in 2026 and Beyond The above developments have several practical impli - cations for companies with exposure to the Portu - guese market and for counsels advising on competi - tion law in this jurisdiction: • Expanding liability horizons : The AdC’s growing emphasis on labour-market enforcement, cou - pled with the CJEU’s ruling in Tondela (C-133/24) that no-poach agreements generally constitute restrictions by object means that companies should urgently review any non-compete or non- solicitation provisions contained in employment- related agreements or industry codes. The TCRS’s endorsement of the fine imposed in Inetum further signals that Portuguese courts are prepared to treat these practices with the same seriousness as more traditional forms of cartel conduct. • Multi - sector private enforcement exposure : Portu - gal’s collective redress framework is increasingly relevant across a broad range of sectors, extending beyond the retail hub-and-spoke cases that initially attracted attention. Companies implicated in EU- level cartel decisions can therefore regard Portugal as a credible venue for follow-on damages claims, irrespective of the sector in which the infringement occurred. • Interest accrues from the date of harm : The Wenzel Logistics ruling has significant quantification impli -
137 A NTITRUST LI T IGATI O N 2026
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