PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
investigation, for the issuance of the SO and for the adoption of final decisions in cartel cases, since, under the Portuguese competition legal framework, participation in a cartel (as with oth - er antitrust infringements) is an administrative offence rather than a criminal offence. 5.2 Plea Bargaining/Settlement The Competition Act expressly establishes set - tlement procedures, which are applicable in gen - eral to all competition infringements. Settlements may include pleading guilty or an agreement on commitments to bring the infringe - ment to an end, allowing for a fine reduction and a swifter procedure. Although aimed mainly at other types of infringe - ments (in its Guidelines on the handling of anti - trust proceedings, dated March 2013, the PCA states that, in principle, it will not accept com - mitments in cartel cases), the settlement proce - dure is applicable to cartels and the reduction of fines is cumulative with the Leniency Pro - gramme, where applicable. Facts brought to the PCA under a settlement procedure cannot be appealed in court. Access to settlement documents by third parties or the other undertakings concerned is limited and requires the consent of the author of the settlement. The settlement procedure is very much in line with the EU type of settlement, although with some particularities, such as the fact that the reduction of a fine is not defined in the Act, but is decided by the PCA on a case-by-case basis. The PCA has issued Guidelines on the method of setting fines (see above). The reductions will,
in principle, be more relevant the sooner the set - tlement is reached. The Portuguese Competition Act sets two phas - es to apply for settlements: during the investiga - tion or in the prosecution phase. At any stage of the investigation, the party con - cerned can request settlement. Also, during the investigation, the PCA can set a time limit of not less than ten working days for the party con - cerned to apply for, and demonstrate its willing - ness to propose, a settlement. After that, the PCA will inform the party about the facts it is accused of, the evidence giving rise to sanctions and the fine amounts set by law for the offence in ques - tion. Once the discussion has been concluded, the PCA will set a time limit (of not less than ten working days) for the party concerned to sub - mit a written settlement proposal. The PCA will review this proposal, assessing its conformity with the conversations held between the parties, and will refuse it if it considers the submission to be unsubstantiated (in which case, the decision is final and not subject to appeal); or accept it and draw a settlement notice that includes the identification of the party, legal stipulation of the rules infringed and the terms of such settle - ment, including the sanctions imposed and the percentage of reduction of the fine. The party concerned should confirm the notice, since the settlement submission is deemed revoked once the time limit of ten working days has elapsed. If the proposal is deemed revoked, it cannot be used as evidence against any of the concerned undertakings in the proceedings. After the conclusion of the investigation pro - ceedings and when the PCA notifies the party concerned of the decision to initiate prosecution proceedings, the party can propose settlement,
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