PORTUGAL Law and Practice Contributed by: Armando Martins Ferreira, Inês Sequeira Mendes and Margarida Calixto Kolmer, Abreu Advogados
and data-driven anti-competitive practices. As digital markets continue to evolve, authorities may target businesses that use algorithms or data analytics to manipulate pricing or restrict market competition. Healthcare and pharmaceuticals could also become a priority, as global trends indicate increased vigilance in detecting pricing agree - ments and market allocation strategies that limit consumer access. With the pharmaceuti - cal industry playing a crucial role in public health, regulatory bodies may examine whether firms engage in practices that inflate drug prices or restrict competition through exclusive supply deals. Energy and sustainability are other sectors that may come under investigation. As the world shifts toward renewable energy, competition authorities could pay closer attention to collusive behaviour in green energy markets, ensuring that businesses do not engage in anti-competitive agreements that hinder innovation or access to cleaner alternatives. 7.5 Use of Messaging Applications and Chat Platforms The PCA has been increasingly focused on the challenges posed by ephemeral communica - tions in cartel investigations. To address this, the PCA has emphasised the importance of data retention policies and has encouraged companies to implement meas - ures that ensure relevant communications are preserved. While there is no explicit regulation solely targeting ephemeral messaging, the PCA has issued guidance on evidence preservation in broader competition law enforcement, stress - ing that companies must maintain records that could be relevant to investigations.
Failure to retain or produce such evidence can have serious consequences. Companies that obstruct investigations or fail to comply with document requests may face fines and legal sanctions. Additionally, if a company is found to have deliberately destroyed evidence, it could be considered an aggravating factor in deter - mining penalties and be potentially subject to additional criminal-related offences. 7.6 “No Poach” and Labour Market Allocation Conduct Portugal does recognise “no-poach” agree - ments and labour market allocations as poten - tial cartel offences, particularly when they restrict competition in the labour market. The PCA has issued guidance on these agreements, empha - sising that they can limit worker mobility and artificially suppress wages, much like traditional cartels do in product markets. The PCA applies Article 9 of the Competition Act, which prohibits agreements that restrict competition, including those that prevent com - panies from hiring each other’s employees. These agreements are considered horizontal restrictions, meaning they occur between com - petitors and can be subject to significant fines and sanctions. In terms of prevalence, no-poach agreements are more common in franchising chains, where businesses may restrict employee movement between locations. However, outside of legiti - mate commercial ventures, such agreements can be highly problematic, particularly in indus - tries where skilled labour is in high demand. The PCA has already sanctioned companies for engaging in anti-competitive labour practices, including a case involving Portuguese football clubs, which restricted player transfers under a no-poach arrangement.
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