PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
• confirm that the inspection is restricted to those locations and data directly connected with the inspection as defined by the judicial search order; • ensure that communications under legal privi - lege are respected; • request the suspension of the inspection procedures in the case of an unlawful act or procedure; note any cases of breaches and disagreements with the PCA’s investigators and ensure those notes are signed off by the inspectors; and • safeguard the observance of the other basic procedures described in 2.2 Dawn Raids/ Search Warrants . 2.5 Obtaining Evidence/Testimony The PCA has the power, subject to the appropri - ate search orders, to carry out searches, exami - nations, collection and seizure of accounting data or other documentation, irrespective of the devices on which it is stored or saved, at the premises, property and means of transport of the undertakings concerned. The seizure of documents is to be authorised, ordered or validated by a judicial authority; however, the PCA can seize documents during the search or where there is an urgent requirement, or where any delay may endanger the finding of evidence, but any such seizures carried out by the PCA without a prior search order must be validated by the competent judicial authority within the fol - lowing 72 hours. Cartel infringements are administrative offences and, as such, there are legal restrictions con - cerning the type of elements of proof that may be used. Telecommunications and correspond - ence (if unopened) are specifically protected by the general regime of administrative offences (Misdemeanours Regime, Decree-Law 433/82,
of 27 October 1982), the Criminal Code and by the Portuguese Constitution. The proof-gathering powers of the PCA have increased with the transposition of the ECN+ Directive, as under the current wording of the Competition Act, the PCA is endowed to carry out the inspection of documents and select cop - ies or extracts to seize at the PCA premises or any other designated premises. Furthermore, the PCA maintains the powers to interrogate employees and company represent - atives and, significantly, conduct searches not only of the company’s premises, but also of the vehicles and homes of the shareholders, of the members of the board and of employees. The PCA also has the powers to seize docu - ments that are deemed relevant to the inves- tigation, no matter what their source (paper or digital), to carry out unannounced searches and to secure premises overnight (by sealing them). However, these powers generally require a spe - cific judicial search order and, additionally, in some cases, the presence of a judge. 2.6 Attorney-Client and Other Privileges In the context of investigations conducted by the PCA, the Competition Act states that, as a rule and unless such documents are the object of, or an element in, the infringement itself (in which case, they may be seized), it is prohibited to seize documents that are covered by attor - ney-client privilege. Only upon authorisation from the competent judge (ie, the judge responsible for the procedur - al safeguards) can the PCA undertake searches of lawyers’ offices, if there is a well-substantiat - ed indication that evidence of a serious infringe - ment of Article 9 or 11 of the Competition Act
268 CHAMBERS.COM
Powered by FlippingBook