What is the scope of claims of competition law infringement that may be brought in Portuguese courts? 

Some claims that can be brought to court are: (i) follow-on actions for damages if there is already a previous administrative decision of a competition authority that has become res judicata; (ii) a standalone action for damages if there is no res judicata decision of a competition authority; (iii) declarations of nullity of agreements or contractual clauses, actions on unjust enrichment and/or actions aimed at obtaining an injunction. It should be noted that there is a specialist court for competition law cases, the Competition, Regulation and Supervision Court (“Competition Court”). 

What is the legal basis for competition law? 

There is legal basis in both EU and national laws. Regarding national laws that regulate competition, these are the Portuguese Competition Law (“PCL”), as well as the Law on Private Enforcement and the General rules on civil liability provided for in the Civil Code. The current Portuguese framework is highly influenced by the EU Directive, under Article 288 of the TFEU.  

Who can bring an action for breach of competition law? 

Any legal entity or a natural person who has suffered harm as a result of an unlawful act (in casu, an infringement of competition law) can bring an action. Also, the Law on Private Enforcement has provisions to encourage collective redress mechanisms, like the so-called popular action (“ação popular”). 

What are the interim remedies that are readily available? 

The Portuguese Civil Procedure Code establishes specified and non-specified interim measures that can only be granted if certain conditions cumulatively met: (i) Periculum in mora; (ii) Fumus boni juris; (iii) Test of proportionality. Additionally, the Law on Private Enforcement sets out interim relief measures related to the preservation of the means of evidence, whenever there are serious indicia of an infringement of competition law that is likely to cause harm. 

What are the final remedies and how is the amount of the award determined? 

The remedies available to claimants for the violation of competition rules are: (i) Infringers (or co-infringers) are required to pay damages (including interests) to compensate for the harm caused; (ii) Nullity and the respective unenforceability of agreements, concerted practices, or decisions of undertakings. Compensation includes the amount of damage caused by illegal conduct. This means that the compensation covers: (i) the actual loss (“damnum emergens”); (ii) the loss of profits (“lucrum cessans”); and (iii) interests until the payment of the damages in full. 

Do evidential presumptions play an important role in damages claims? 

The Law on Private Enforcement has enacted different legal presumptions, namely in its Articles 7, 8(3), and 9(1), respectively, regarding the existence of decisive influence, infringements, passing-on, and damages that reverse the burden of proof, in compliance with the Directive. Specifically, regarding cartel cases, Article 9(1) of the Law on Private Enforcement enshrines a presumption of damages (and causation) with regard to cartel practices, in accordance with Article 17(2) of the Directive. 

How would courts deal with issues of commercial confidentiality if found on evidence? 

Commercial confidentiality is taken into consideration, as prescribed in Articles 12(4) and 12(5)(c) of the Law on Private Enforcement. Disclosure and access to evidence are dependent on a test of proportionality and relevance. Evidence containing confidential information shall be attached to the proceedings, and special measures shall be enacted to protect commercial confidentiality, as set out in Article 12(7), e.g., concealing confidential information from documents or instructing experts to summarize the information in an aggregated or otherwise non-confidential form, among others. 

Are there any exemptions for prohibited practices? 

Prohibited practices may be exempted under Article 10 of the PCL or Article 101(3) of the TFEU, or both. Since there are no industry-specific defenses, these general rules apply. Additionally, there are some exceptions made in the name of public interest.  

Are defendants able to join other cartel participants to the claim as co-defendants? 

Generally, cartel participants are procedurally able to request the joinder of other cartel participants to the claim as co-defendants. 

What are commonly the timings in a breach of competition law claim? 

The general rule is, that once an infringement ceases, injured parties will benefit from a period of five years to bring a claim. In any case, the limitation period may not exceed 20 years counting from when the right to compensation for damages could be exercised. For competition law claims brought before the Competition Court, as well as possible appeals to the Lisbon Court of Appeal and to the Supreme Court, they may generally take, respectively, between two and three years until a judgment is given. 

Is leniency offered by a national competition authority in your jurisdiction? 

The Portuguese Competition Authority may grant immunity from a fine or reduction of a fine pursuant to certain forms of infringement of Article 101(1) of the TFEU and/or its equivalent, Article 9 of the PCL. 

What are the anticipated reforms to the competition law? 

Firstly, the Law on Private Enforcement, which implemented the EU Directive on Antitrust Damages Actions in 2018, goes beyond this Directive in several aspects, such as: (i) the law is applicable both to claims for damages and to any “other requests” based on a violation of EU or Member State competition law (e.g., actions for access to evidence or declarations of nullity/voidness of contractual clauses, interim measures, etc.); (ii) the parent company is liable for their subsidiaries’ infringements and there is a presumption of exercise of control above a 90% shareholding. (iii) the law provides the right of opt-out representative actions (“ação popular”) that may be used in actions for damages regarding the violation of competition laws. Secondly, Law No 17/2022 of 17 August implements Directive (EU) 2019/1, giving more powers of investigation to the Portuguese Competition Authority, to ensure the proper functioning of the internal market (“ECN+ Directive”), leading to more robust public enforcement and additional condemnatory decisions.