PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
6.4 Evidence Obtained From Governmental Investigations/ Proceedings
will be deemed to have proved that a passing-on to them occurred where they have shown that: • the defendant has committed an infringement of competition law (as declared by the PCA, through a final decision, or by the Competi - tion Court, through a decision which has become res judicata, of the existence of an infringement of competition law that consti - tutes an irrebuttable presumption of the exist - ence, nature and material, subjective, tempo - ral and territorial scope of that infringement, for the purposes of an action for damages arising therefrom); • the infringement resulted in an overcharge for the direct purchaser of the defendant; and • the indirect purchaser purchased the goods or services that were the subject of the infringement, or purchased goods or ser - vices derived from or containing the goods or services that were the subject of the infringe - ment. With this additional legal presumption result - ing from a final decision by the PCA or by the Competition Court, through a decision that has become res judicata, as set forth in Law 23/2018, it is much more likely for indirect purchasers to obtain compensation, especially when com - pared with the previous regime, where the bur - den of proof that the defendant had committed an infringement of competition law rested with the indirect purchaser. Whether it is possible for the alleged infringer to raise a passing-on defence depends on the bur - den of proof and its consequences. The burden of proof rests with the defendant, who will have to present proof of the existence of a passing-on that eliminates or reduces the damages caused to the claimant. Such proof can be difficult to produce.
There is a principle of admission of evidence, obtained by public authorities in the exercise of their functions and material powers, along with a general duty of reporting and collaboration by public officials in the exercise of their functional prerogatives and within the framework of the applicable regulations. 6.5 Frequency of Completion of Litigation Before Law 23/2018 there were few cases of this type of action in Portugal, and the success rate was very low (only around seven cases resulted in compensation since 1988). With the coming into force of Law 23/2018, the number of damages actions has been increas - ing, with various lawsuits currently pending. However, it is not possible to draw conclusions about their success or duration. 6.6 Attorneys’ Fees There are no specific legal provisions regarding this issue, provided that the lawyers’ compen - sation is agreed within the limits set forth by the Statute of the Portuguese Bar Association, which, among other things, prohibits quota litis agreements. 6.7 Costs/Fees The general provisions of the regulation on procedural fees apply. Procedural fees include (broadly) court fees ( taxa de justiça ) and court expenses. Court fees are due and charged for the procedural initiative of the party and depend on the amount of the claim or claims at stake in the proceedings, as well as on the complexity of the case. Court expenses relate to the costs of certain procedural acts or services.
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