The powers of the Portuguese Competition Authority (PCA) are now significantly muscled in light of the Former Competition Act (Law 18/2003), as Articles 13 to 35 of the New Competition Act (NCA, Law no. 19/2012) enhance the powers of the authority in antitrust procedures. These legislative modifications are aimed to increase the efficiency and effectiveness of the authority’s competition enforcement.
Request for information by the authority should now, as a rule, be answered within a period of 10 business days and confidential information or business secrets should be duly identified and justified as such by companies (Article 15). Procedurally, notifications can now be made by the authority, in the context of antitrust proceedings, directly to a company located outside the national territory (Article 16) and members of governmental bodies and agencies have the duty to communicate to the authority potential or effective competition law infringements – Article 17(5).
The authority’s standard powers of inspection (Article 18) continue to be aligned with those of the Commission under Article 20 of EU Regulation 1/2003. As a significant development vis-à-vis the former Competition Act, the authority now has (under Article 19) the possibility to search the homes of (i) company’s shareholders, (ii) members of the board, (iii) workers, and, in general, (iv) any given company assistant. In addition, the authority can now, in accordance with Articles 19(7) and 20 conduct searches in lawyer’s offices and in medical offices. The legal provisions that grant the authority the power to search private homes and lawyer’s offices should, following an antitrust case in which these are applied, be reviewed by the Portuguese Constitutional court, as these provisions do not appear to conform with the relevant provisions of the Portuguese Constitution, notably in terms of adequacy, necessity and proportionality.
The settlement procedure in the inquiry phase is now, ex novo, regulated in the Competition Act (Article 22) and can be triggered ex officio by the authority or by request of the defendant. Third parties cannot access a settlement proposal – Article 22(16). The investigation, in the inquiry phase, can now also be closed through the proposal of commitments by the defendant (Article 23). Prior to the acceptance of such commitments, the authority must publicize in its web page and in two national newspapers a summary of the case and respective proposed commitments – Article 23(4). The authority’s decision which accepts the commitments does not recognize the existence of a competition law infringement – Article 23(6). As a rule the inquiry phase should be concluded within a period of 18 months counting from the date in which the case was opened – Article 24.
The standard period of time to reply to the statement of objections in the instruction phase is now 20 business days – Article 25(1). The new Competition Act also grants the authority the possibility to issue additional statement of objections in the same file – Article 25(6) – conduct which materially led in the past to the annulment of authority’s decisions in the judicial phase by the judicature. The settlement procedure can also be triggered by the defendant in the instruction phase (Article 27), following the adoption of the statement of objections. Third parties cannot access settlement proposals – Article 27(11). Commitments can also be proposed in the instruction phase (see Article 28 in articulation with the above referred in relation to the use of commitments in the inquiry phase under Article 23).
In terms of company’s confidential information and business secrets protection, the authority now has the power to ex officio dismiss such protection when it deems that the company’s confidential information is necessary to give evidence of the antitrust infringement (Article 31(3)), hence having the power to materially disqualify the protection of company’s business secrets.
In terms of access to the file by the defendant, Article 33(3) states that the authority holds the power to impede such access when it considers that such access could be prejudicial do the investigation, thus, this provision, can materially affect the due process of law and the adversarial system.
Finally, Article 34 grants the authority the power to adopt interim measures, which are valid, as rule, for a standard period of 90 days, without prejudice to subsequent extensions, and Article 35 details the articulation of the authority with sectorial regulators in antitrust procedures, which can lead, inter alia, to the suspension of the PCA’s case while the sectorial regulator investigates the same facts under the respective competences and attributions.
