PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
Considering the particulars of a given case (the amount of the claims at stake), it is possible to make an approximate estimate of the procedural fees to be charged in the proceedings. The final court decision (or a decision that finally decides any procedural incidents or appeals) will rule on the liability for costs, with the general rule being that the losing party will be liable for payment of the procedural costs in proportion to its loss. 6.8 Judicial Review or Appeal The law generally allows the parties to the pro - ceedings one appeal from the decisions of the court of first instance to the court of appeals. There may be an appeal on the merits or a review appeal to the Supreme Court, provided certain conditions are met and the court’s jurisdiction is respected, without prejudice to the rules on preliminary reference to the Court of Justice of the European Union, where applicable. Exceptionally, there may also be an ultimate appeal to the Constitutional Court when the interpretation and application of constitutional rules might be at stake. 7. Trends in Cartel Enforcement 7.1 Information Sharing as a Cartel Offence The PCA does consider certain types of informa - tion sharing between competitors to constitute a cartel offence, particularly when the exchange reduces strategic uncertainty between firms and restricts competition. These cases are treated seriously, especially if the information shared relates to current or future pricing, future com - mercial strategies, production levels, market allocation, or customer lists.
The PCA applies to a standard that distinguishes between legal and illegal exchanges based on the nature, frequency, and strategic relevance of the information shared. Information sharing is likely to be considered an infringement where the data is strategic, not publicly available, and capable of influencing market behaviour. This is particularly the case when the exchange takes place regularly or involves future intentions rath - er than past data. The legal standard is rooted in the notion of a concerted practice under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 9 of the Portuguese Competi - tion Act. An exchange does not require proof of a formal agreement; it is sufficient that competing undertakings co-ordinate their behaviour know - ingly through information exchange. Even a uni - lateral disclosure, if followed by aligned conduct, may trigger liability. These types of infringements have become increasingly common in PCA enforcement. In recent years, the PCA has investigated and sanctioned companies in sectors such as insur - ance, banking, and driving schools for engaging in information exchanges that facilitated collu - sive outcomes. For example, in the insurance cartel case, the PCA found that companies shared commercially sensitive data to align their pricing strategies in tenders, which it qualified as a serious cartel offence. In addition to traditional cartel enforcement, the PCA monitors industry associations, as these forums can sometimes serve as platforms for unlawful information sharing. The PCA also con - ducts market studies to assess risks of coor - dination in sectors where companies may be inclined to exchange sensitive data under the guise of benchmarking or transparency.
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