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
Article 7 (1) of the PCL sets the priorities of PCA’s mis - sion and states that in carrying out its responsibilities, the PCA shall be guided by the public interest criterion of promoting and protecting competition and may, based on this criterion, assign different degrees of priority to the matters it is called upon to analyse and reject the handling of matters it deems non-priority. I is also established by the PCL that the PCA shall exercise its sanctioning powers on a case-by-case basis, whenever the public interest of pursuing and punishing infringements of competition rules entails the initiation of administrative offence proceedings, taking into account in particular the priorities in competition policy and the elements of fact and law brought by the parties. The PCA registers all complaints but will only initiate proceedings if there are sufficient grounds to do so. Should PCA consider a complaint to be non-priority or lacking legal basis, it must inform the complain - ant, who then has ten working days to submit writ - ten observations. If the complainant fails to do so, the complaint is deemed withdrawn. If observations are submitted (within the deadline), the PCA may, in light of such observations, either initiate proceedings or, alternatively, notify the complainant of an express decision of rejection. 6.4 Abuse of Dominant Position PCL prohibits the abuse of a dominant position which is deemed to occur where an undertaking holds a dominant position in the relevant market, and exploits it in an abusive manner. According to the European Court of Justice’s juris - prudence, a dominant position relates to a position of economic strength that enables an undertaking to pre - vent effective competition from being maintained in the relevant market by granting it the power to behave in a considerable extent regardless of its competitors, customers and consumers. There shall be an individual or collective dominant position with regard to a given product or service if: • a company acts in a market in which it is not sub - ject to significant competition; or
• two or more companies behave in a concerted manner on a market in which they do not have significant competition or in which they prevail over others (joint dominance). As with Article 102 of the TFEU, PCA also provides examples of restrictive practices. • Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions. • Limiting production, markets or technical develop - ment to the prejudice of consumers. • Applying dissimilar conditions to equivalent trans - actions with other trading parties, thereby placing them at a competitive disadvantage. • Making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. • Refusing access for another undertaking to a network or other essential facilities that it con - trols, against the appropriate payment, provided that such undertaking without it cannot act, for de facto or legal reasons, as a competitor of such undertaking in a dominant position in the upstream or downstream markets, except if the dominant undertaking evidences that such access is not rea - sonably possible for operational or other reasons. The last example is innovative when comparing the wording of the national law with EU Law provisions. However, in practical terms, the same understanding and practice is followed within the EU scheme. In addition to the abuse of dominant position, PCL also prohibits, in Article 12, the abuse of economic dependence, which intends to prevent the abuse by one or more undertakings of the economic depend - ence over a supplier or client that has no equivalent alternative. Portuguese legislation also prohibits unilateral com - mercial practices regarding activities which do not necessarily or per se have effects on competition. The Decree-Law No 166/2013, of December 27 sets out the legal regime applicable to individual restric - tive trade practices which impose transparency and
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