PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
qualifications of the alleged conduct, or dispute the factual assumptions made by the PCA. Legal arguments at this stage might involve contesting the facts and the applicability of EU or national competition law to the case at hand or challenging the PCA’s conclusions regarding the existence of a cartel or the anti-competitive effects of the behaviour. Counsel might also raise arguments regarding market dynamics, the lack of collusion, or the pro-competitive effects of the behaviour. If applicable, they can provide evidence or arguments about lack of intent or other mitigating factors that could lessen the severity of the action. Economic analysis and expert opinions may be submitted. Defence counsel can also raise factual and legal arguments to attempt to modify the prospective action taken by the PCA. For example, if the PCA is considering imposing a fine, defence counsel can argue for reduced penalties based on fac - tors like the company’s co-operation with the investigation, the absence of harm to competi - tion, or the lack of significant market power. If the company is willing to settle or provide useful evidence, counsel can also seek to promote a more lenient outcome. 3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency The Leniency Regime is included in Articles 75 to 82 of the Competition Act, the provisions of which are binding upon the PCA and the courts. The criteria set out in the Competition Act to obtain immunity from, or the reduction of, a fine is clear and comprehensive. Furthermore, the PCA adopted Regulation No 1/2013 with respect to the procedures to obtain immunity from, or the
reduction of, a fine, as well as an accompany - ing Explanatory Notice on substantive and pro - cedural aspects, which will have to be revised, given the changes made to the Competition Act by the transposition of the ECN+ Directive. Nonetheless, the PCA remains empowered with a degree of discretion to assess whether the legal conditions for the Leniency Programme to be applied have been fulfilled, especially those requiring subjective assessment (ie, see condi - tions (b) and (c) of the immunity regime under PCA Regulation No 1/2013 or assessment of the significant added value of the information/ evidence provided by applicants for the reduc - tion of a fine). The Leniency Regime in Portugal can benefit undertakings, associations of undertakings or individuals, as all of these can be held liable for infringement of the Competition Act (eg, mem - bers of the board of directors or the supervisory board of legal persons and equivalent entities, as well as those responsible for the executive management or supervision of areas of activity where an administrative offence has occurred). The Leniency Regime has been applied regular - ly, which demonstrates its usefulness as a legal instrument for investigating and sanctioning cartel cases in Portugal. This regime has been applied in several significant cases, including the catering services cartel (2007), the commer - cial forms cartel (2012), the polyurethane foam cartel (2013), the pre-fabricated modules cartel (2015), the office consumables cartel (2016), the insurance cartel (2019), the telecommunications cartel (2020), the surveillance and security cartel (2022), the electrical cables cartel (2023) and the technology consulting cartel (2024).
271 CHAMBERS.COM
Powered by FlippingBook