For the benefit of the reader, we shall focus on the regime applicable to appeals of antitrust proceedings, given that there are no relevant changes as to appeals relating to administrative proceedings. In fact, the new act even maintains an unbalanced aspect, provided in the former law, whereas there are only two levels of judicial scrutiny for antitrust appeals, compared to three degrees of jurisdiction in administrative cases, which are typically less complex and severe.
General remarks
Antitrust appeals are probably the issue that has been generating larger controversy in the framework of the new act.
Since at least 2008 the Authority has been claiming for a revision of the appeal mechanisms in antitrust proceedings. The Authority considers that incentives should be reduced so that defendants do not resort to this right indiscriminately.
However, the fact is that reality itself contradicts the idea that appeals are being used as a delaying tactic. At the outset, any limitation on rights that are constitutionally safeguarded and fully consolidated in democratic legal orders, such as the right to a fair trial and the presumption of innocence, should only be considered in the face of relevant aims with equivalent value. And this does not seem to be the case here.
Actually, even the figures show that, in a significant number of antitrust appeals, Portuguese courts decide in favour of the appellant and end up quashing, in whole or in part, the Authority’s decisions. This fact alone confirms the need to continue keeping effective judicial scrutiny of the Authority’s activity in this field.
In any event, the legislator made important modifications in the appeal process of antitrust cases.
As a rule, appeals no longer suspend the effects of the Authority’s decisions
There was an inversion of the prior rule, adopted in criminal infractions and in most misdemeanours, on the basis of which the challenge of an Authority’s decision suspended the execution of such decision. In the new act, the contested decision must be executed by the defendant even prior to its assessment by the court, save for the exceptions mentioned below.
The impact of this modification is particularly serious if one takes account of the high amount of fines that are usually involved, of the difficulty to collect from the State sums that are unduly paid and of the absence of any mechanism able to restore the economic value of these unduly paid sums (and of the economic losses incurred by companies thereby) should the Authority lose the appeal.
The new competition act envisaged to offset some of these negative implications, by providing, on the one hand, that the appeal suspends the effects of potential structural measures accompanying the decision and, on the other, that the appeal may suspend the effects of the entire decision if the defendant demonstrates that the execution of such decision causes him a considerable damage and, instead, pays a deposit.
The first exception is the least acceptable, given the irreversible effects of structural remedies. It is only left to know what application will the second exception have and whether, in practice, due to the current financial difficulties and requirements that companies face and to the thresholds, deadlines and criteria set by the new Supervision, Regulation and Competition Court for the deposit, the substitution of the fine for the deposit is in fact viable.
It is true that the possibility to have the court suspend the payment of the fine corresponds to the model of the EU. However, the Commission holds an impressive success rate in antitrust cases and such model has been created almost 50 years ago, at a time and context that do not resemble the existing ones, with the known financing constraints.
Reformatio in pejus
The prejudice of the former aspect is aggravated by the introduction of another new feature of the appeal process, which, alone, would suffice to meet the Authority’s concerns about an eventual disruptive use of appeals in competition proceedings: competent court now has unlimited jurisdiction to resolve disputes, i.e., it may either maintain, reduce or increase the amount of fines and other sanctions applied by the Authority.
Decisions to terminate proceedings are not subject to judicial review
The new act provides that it is not possible to appeal against Authority decisions terminating antitrust proceedings, regardless of whether they have conditions attached to it or not. This ban, all the more announced in such absolute terms, is not reasonable. A defendant concerned by a condition decision terminating proceedings may be interested in challenging that decision, if, for instance, the Authority imposes conditions which are not the result of commitments offered by the defendant. Even Authority decisions adopted in the framework of a settlement procedure may be appealed within some constraints, as long as the defendant does not seek to challenge facts that he himself confessed.
Nevertheless, our main objection to this prohibition has to do with the position of third parties, in particular complainants. It does not seem reasonable or fair that complainants are barred from having their claims reviewed by a court where the Authority refrains from intervening. Moreover, it does not make sense that Authority decisions rejecting complaints may be appealed under the terms of Article 8(4), and those decisions which terminate the proceedings in the inquiry or even in the instruction may not, when it is obvious that in the latter case there was an investigation and evidence gathering that may benefit the complainant.
The deadline for lodging an appeal has been extended, but is still insufficient
The time limit for bringing judicial proceedings against final conviction decisions has been extended from 20 to 30 working days, although the new deadline still seems scarce, bearing in mind the complexity, the size and the sanctioning consequences of these cases. It is worth noting that the defendant has no less than 20 working days to respond to the statement of objections in the term of the inquiry, which requires much less time to prepare than an appeal of a final decision (which is often quite long). It would have been wiser, as suggested in the public consultation, to provide for a 2 month time limit equivalent to the action for annulment existing at EU level.
