PORTUGAL LAW AND PRACTICE Contributed by: Joana Torres Fernandes, José Manuel Pereira da Costa, Danielle Avidago, Javier Mateo, António Pratas Nunes, Joana Loureiro Veríssimo, Madalena Mourão and David Serras Pereira, LVP Advogados
financial year, by at least two of the undertakings involved in the concentration are greater than five million euros, net of taxes directly related to such a turnover. • The undertakings that are involved in the con - centration have reached an aggregate turnover in Portugal in the previous financial year greater than EUR100 million, net of taxes directly related to such a turnover, as long as the turnover in Portu - gal of at least two of these undertakings is above five million euros. The assessment of the market share and the calculation of the turnover of each undertaking involved in the concentration shall be performed in accordance with specific criteria and special rules apply in some specific cases. A set of concentrations between the same entities within a period of two years – even if the operations, individually considered, would not be considered subject to prior notification – are considered a single concentration subject to prior notification when the concentrations jointly reach the turnover’s threshold entailing the mandatory notification to PCA after the conclusion of the agreement on the last of the opera - Concentrations that are considered, under the thresh - olds set out in 6.1 Merger Control Notification , to be of mandatory filing before the PCA shall be notified to such authority after the conclusion of the agree - ment and before being implemented; or, where appli - cable, after the date of the preliminary announce - ment of a public takeover bid or exchange offer, or the announcement of the acquisition of a controlling interest in a company whose shares are admitted to trading on a regulated market; or, in the case of a concentration resulting from a public procurement procedure, after the final award and before being implemented. tions and before its implementation. 6.2 Merger Control Procedure Also, PCL expressly provides for the possibility of vol - untary notification when there is a serious intention of concluding an agreement. A concentration subject to mandatory prior notification may not be put into effect before it has been notified and has been the object of an explicit or tacit decision of non-opposition and, accordingly, the validity of any legal transaction car -
ried out during the evaluation period depends upon the clearance of the concentration (standstill obliga - tion). A notification only becomes effective after duly sub - mission with all the elements and the respective pay - ment of the fee due. The procedure for assessing a concentration under the PCL comprises two phases: an initial investigation phase , and an eventual phase two, usually called the “in-depth investigation phase”. • In phase one PCA has 30 working days from the date when the notification becomes effective to decide: that the concentration is not subject to mandatory filing; • not to oppose the concentration; or • to initiate an in-depth investigation, if, in view of the evidence gathered, it has serious doubts that the concentration will result in significant impediments to effective competition. In straightforward cases and if some criteria are met – such as absence of horizontal overlap, the absence of vertical relationships, minimal market shares, transi - tion from joint to sole control or negligible activity – a short-form notification can be used, which requires significantly less data and typically leads to a faster clearance decision. During phase one, if PCA considers that there are seri - ous competition concerns, it decides to initiate an in- depth investigation (ie, phase two). In this phase, PCA has a maximum of 90 working days to carry out the additional inquiries that it considers necessary (this time period already incorporates all the working days used by PCA during phase one). This period may be extended by the competition authority, at its own ini - tiative or at the request of the notifying party/parties, for a period that, in total, may not exceed 20 working days. The time period is suspended whenever there are PCA’s additional requests of information (to the par - ticipant parties and/or other interveners) and respec - tive replies. If no decision is issued by PCA within such deadlines (considering said extensions and sus -
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