PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
• terminate the investigation by adopting a decision imposing conditions (commit - ments submitted by the party concerned in order to eliminate the effects on competition stemming from the practice, which are duly accepted by the PCA; it is worth mention - ing that Law No 17/2022, of 17 August 2022, revoked the provision that prevented the reopening of the process if there was compli - ance with the conditions); or • continue with the case by initiating the sec - ond stage of the investigation ( instrução ), with a notification to the defendant of “statement of objections” (SO), when the PCA considers there is a reasonable likelihood of a decision imposing a sanction. 2.2 Dawn Raids/Search Warrants Dawn raids are common. When faced with such an inquiry, companies and employees have spe - cific obligations, set out in Articles 18 to 20 of the Competition Act. First, employees and company representatives should provide access to prem - ises and documents requested by the PCA dur - ing a dawn raid or search. This includes allowing officials to seize documents or electronic data that may be relevant to the investigation. The company’s management shall co-operate with the authorities to facilitate the investigation. Outside counsel plays a crucial role in this context. While they shall not obstruct or hin - der the investigation, they may accompany the PCA officers during the raid to ensure that the search is conducted legally and that the client’s rights are respected. Counsel may also provide legal advice during interviews and help assess the legality of the search or seizure and related investigation activities. The PCA’s search and seizure activities are sub - ject to specific legal limits. For example, the PCA
must have prior judicial authorisation to conduct a dawn raid, either by obtaining a search war - rant. The search should be proportionate to the investigation, meaning it cannot be overly broad or invasive. When it comes to personal devices and personal information, the PCA’s powers are more limit - ed. While the authorities can access business- related documents and electronic data, they cannot automatically access personal devices or information unrelated to the investigation, such as personal emails or private communica - tions. If personal devices are involved, the PCA may need to demonstrate a legitimate reason for accessing the data, and they might be required to protect personal privacy interests. PCA officials can require employees to assist in the search, such as by providing access to documents, data, and systems relevant to the investigation. However, employees cannot be induced to answer questions or provide self- incriminating testimony, as the right against self-incrimination is a protected right under both national and EU laws. During an interview, employees may be ques - tioned by PCA officials, but their statements cannot be used against them in criminal pro - ceedings unless they are granted immunity or leniency. Employees or individuals who refuse to co-operate or answer questions during an interview can face legal consequences, such as penalties for obstructing the investigation. The interview process involves PCA officials asking questions related to the suspected cartel activities. Typically, employees are informed of their rights, including the right to legal counsel. If an employee refuses to co-operate or answer questions, the PCA can report the refusal to the
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