PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
7.2 Use of AI and Algorithms The PCA has expressed growing concern about the potential for AI and pricing algorithms to facilitate anti-competitive practices, including cartel-like behaviour. In December 2024, the PCA published a paper highlighting competi - tion risks associated with access to generative AI models, emphasising the need for vigilance in this area. While the PCA has not yet initiated formal enforcement actions specifically targeting the use of AI or pricing algorithms in cartel conduct, it has signalled an intention to monitor these developments closely. The authority’s focus includes assessing how AI-driven tools might enable or conceal collusive behaviour, particu - larly in digital markets where algorithmic pricing can be prevalent. This aligns with broader trends among competition regulators globally, who are increasingly scrutinising the role of technology in facilitating anti-competitive agreements. In its 2023 activity report, the PCA indicated that it would prioritise investigating potential risks and challenges posed by the emergence of AI in 2024. 7.3 Monopolisation as a Cartel Offence In Portugal, monopolisation itself is not typi - cally classified as a cartel offence, but it can still fall under broader competition law violations. The PCA enforces the Competition Act, which prohibits agreements that restrict competition, including cartels. While cartels involve collusion between com - petitors, monopolisation is more about abuse of dominance – where a company exploits its mar - ket power to restrict competition unfairly. The PCA applies Article 11 of the Competition Act, which aligns with EU competition law, to assess
whether a dominant firm is engaging in abusive practices such as predatory pricing, refusal to supply, or excessive pricing. If monopolisation leads to anti-competitive effects similar to those of a cartel – such as price fixing or market allocation – it could be inves - tigated under restrictive practices rather than cartel offences. The PCA has the authority to impose fines and other sanctions to prevent any anti-competitive behaviour. 7.4 Focus on Certain Industries/Sectors The PCA has been particularly active in enforc - ing cartel regulations, with a strong focus on public procurement, labour markets, and digital economy. • Public Procurement: The PCA has prioritised detecting bid rigging and collusion in govern - ment contracts, as these practices can lead to inflated costs and reduced competition. • Retail and Distribution: The PCA has con - ducted hub-and-spoke investigations, target - ing price-fixing arrangements among suppli - ers and retailers. These cases have resulted in significant fines. • Labour Markets: There has been growing attention on anti-competitive agreements between employers, such as wage-fixing or no-poach agreements, which restrict worker mobility. • Digital Economy: While enforcement in this sector has been limited so far, the PCA has expressed interest in addressing competition concerns related to platform dominance and data usage. The PCA is likely to focus on several emerg - ing sectors in the future. Technology and digital platforms are expected to face greater scrutiny, particularly in areas like algorithmic collusion
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