The Portuguese Constitutional Court and the (Un)Constitutionality of the Non-Suspensive Effect of Appeals of The Portuguese Competition Authority Decisions

The Portuguese Constitutional Court (PCC), in its recent Judgment of 2 October 2018, considered that the rule stemming from Art. 84(5) of the Portuguese Competition Law (PCL) is unconstitutional. Pursuant to said rule judicial appeals lodged against Portuguese Competition Authority’s decisions applying fines may only be conferred suspensive effect when the implementation of the decision causes considerable damage to the defendant and the defendant provides a collateral to substitute the fine.

Said PCC’s judgment was adopted following an appeal of a decision of the Portuguese Court for Competition, Regulation and Supervision which also considered the rule as unconstitutional.

This is an issue that has been discussed in the judicial courts and in the PCC itself, focusing on the competition legal framework and the energy sector sanctions’ regime (ESSR), and has already given room for divergent decisions.

In the context of ESSR this issue was “solved” by the PCC in a judgment adopted by the court in a plenary session. The PCC considered that the ESSR rule that is similar to Art. 84(5) PCL is in conformity with the Portuguese Constitution (Judgment 123/2018).

In what regards the competition legal framework, the PCC considered the rule not unconstitutional in its Judgment 376/2016 and unconstitutional in its Judgment 674/2016. The Public Prosecutor appealed to the PCC’s plenary on the grounds of conflicting judgments. The PCC rejected such appeal noting that the two judgments assessed two distinct normative dimensions of the rule at stake (Judgment 281/2017).

In its Judgment of 2 October 2018, the PCC based its decision on the grounds of Judgment 674/2016, having concluded that the solution of not unconstitutionality adopted in the context of the ESSR should not be applied to the competition legal framework because it focused on a different normative object and was based on specificities pertaining the energy market and the legal functions exercised by the Portuguese Regulator for Energy Services.

Hence, the PCC concluded that the rule stemming from Art. 84(5) PCL is unconstitutional for infringing the principles of the right to effective judicial protection, proportionality and presumption of innocence in misdemeanor procedure.