PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
1. Cartels Law and Regulation 1.1 Legal Bases Public enforcement actions regarding cartels are primarily ruled by the Portuguese Competition Act (Law 19/2012, of 8 May 2012, the “Competi- tion Act” , last amended by Law 17/2022, of 17 August 2022), particularly by Article 9. Vital provisions and further guidance are also set forth in regulations and guidelines adopted by the Portuguese Competition Authority (PCA) and in the PCA’s statutes (Decree-Law 125/2014, of 18 August 2014). Articles 75 to 82 of the Competition Act also include the legal framework of the Portuguese Leniency Programme (applicable to infringe - ments of Article 9 of the Competition Act and Article 101 of the Treaty on the Functioning of the European Union, or the TFEU). Regulation (EU) No 1/2013 on “The procedures relating to obtaining immunity from a fine, or the reduction of a fine, under the provisions of Law 19/2012” details the procedure relating to an application for immunity under the Leniency Programme. In addition, the PCA has issued an Explanatory Notice, the “Notice regarding immunity from a fine or the reduction of a fine in administrative procedures to establish infringe- ment of competition rules” , which sets out the way the PCA applies the Leniency Programme in administrative proceedings. The PCA also published guidelines on the han - dling of antitrust proceedings in March 2013, specifically regarding the enforcement of Articles 9, 11 and 12 of the Competition Act and Articles 101 and 102 of the TFEU, in addition to guidance on the related procedure.
Since cartel infringements qualify as adminis - trative offences ( contraordenações or misde- meanours), enforcement is complemented on a subsidiary basis by the Misdemeanours Regime (Decree-Law 433/82, of 27 October 1982). The judicial review of the PCA’s cartel enforce - ment decisions is also governed by the decree- law referred to in the previous paragraph and on a subsidiary basis by the Code of Criminal Procedure (Decree-Law 78/87, of 17 February 1987). Law 23/2018, of 5 June 2018 – which trans - posed Directive 2014/104/EU, of 26 November 2014, into the Portuguese legal framework – pro - vides for the liability regime for damages due to infringements of the competition law, set forth in Articles 9, 11 and 12 of the Competition Act, and Articles 101 and 102 of the TFEU. Finally, Law 93/2021, of 20 December 2021 – which transposed Directive 2019/1937/EU, of 23 October 2019 – provides a set of obligations for companies and public entities regarding the protection of whistle-blowers and the creation and implementation of internal channels for the reporting of breaches of EU law. 1.2 Regulatory/Enforcement Agencies and Penalties Competition law is enforced by the PCA, created by Decree-Law 10/2003, of 18 January 2003. The PCA is a public entity with the nature of an independent administrative body, having sanc - tioning, supervisory and regulatory powers that are established in Decree-Law 125/2014 and further developed in the Competition Act. The investigation of cartels is designated to a dedicated unit, within the PCA, called the “Anti- cartel Unit” , which was created to address the
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