The Portuguese Competition Authority (Autoridade da Concorrência) was created by Decree Law No. 10/2003, of 18 January 2003. In parallel, a new Competition Act was enacted by Law No. 18/2003, of 11 June 2003 (the Act).

The responsibilities of the Authority include:

• ensuring compliance with competition rules and regulations;
• encouraging practices promoting competition and developing a competition culture among economic operators and the public in general;
• establishing guidelines deemed relevant to competition policy;
• following the activities of other countries’ competition authorities and establishing cooperation links with such authorities, as well as with the EU and international authorities;
• promoting research in the area of competition law;
• participating in the improvement of Portuguese laws in all areas where competition may be affected;
• carrying out the tasks conferred upon member states’ administrative authorities by EC law in the field of competition;
• ensuring the Portuguese state’s representation in EU or international institutions in competition matters; and
• carrying out all other responsibilities that may be conferred upon it by law.

As far as regulated sectors of activity are concerned, the Authority’s responsibilities are to be carried out in cooperation with the corresponding sector’s regulatory entities.

Powers
In order to perform its responsibilities, the Authority is granted powers to impose penalties, as well as supervisory and regulatory powers.

Within its sanctioning powers, the Authority is competent to identify and investigate practices likely to infringe competition law and to adopt decisions in the corresponding proceedings, including imposing appropriate sanctions. Whenever necessary, interim measures may also be adopted.

Under its supervisory powers, the Authority will carry out studies, enquiries and audits in competition matters, investigate and decide on administrative procedures concerning the compatibility with competition rules of agreements or categories of agreements between undertakings, and investigate and decide on merger control procedures.

Within the framework of these powers, the Authority enjoys the same rights and is subject to the same duties as the police in charge of criminal matters. These powers include, for example, questioning and demanding documents from legal representatives of undertakings or associations of undertakings, and sealing off premises if relevant documents are liable to be found therein. Furthermore, upon prior judicial warrant, the Authority has the power to conduct searches and seize records or other documents on the premises of undertakings or associations of undertakings.

As per its regulatory powers, the Authority may approve or propose the adoption of regulations, issue general recommendations and guidelines, and propose and ratify codes of conduct or best practice manuals.

Besides these powers, there is a general obligation to provide the Authority with all the information that it requests, in order for it to properly fulfil its responsibilities, within a 30-day period (if a different period is not fixed in a substantiated decision).

In addition, particularly in connection with the sanctioning powers, the Authority is in charge of the application of the leniency regime enacted by Law No. 39/2006, of 25 August 2006.

Structure
The Authority is composed of two bodies, the council (Conselho) and the sole statutory auditor (Fiscal Único).

The council is the Authority’s highest body and is responsible for the enforcement of competition law and for the management of the Authority’s services. It consists of a chairman and two or four other members, appointed by the council of ministers upon the proposal of the minister responsible for economy matters, and pursuant to the hearing of the ministers responsible for finance and justice affairs. No appointment can be made after the government’s resignation or dismissal, after elections for parliament have been called or before a recently appointed government has been confirmed by parliament.

Members of the council are appointed for a term of five years. But on first appointment or after the dissolution of the council, some of the members are appointed for three years (renewable for five years), the remaining ones being appointed for five years.

The sole statutory auditor is responsible for the legal and economic control of the Authority’s asset and financial management, and also carries out an advisory role to the council.

A chartered accountant or a chartered accountancy firm, the sole statutory auditor is appointed by joint decision of the ministers responsible for finance and economic matters, upon the prior opinion of the council, for a term of three years, renewable for an equal period under the same procedure.

Administrative and financial organisation
A public entity with administrative and financial autonomy, the Authority has been granted statutory independence for the performance of its activities, without prejudice to general competition law principles established by the government and to certain acts subject to the administrative supervision of the minister responsible for economic affairs.

The minister responsible for economic affairs must approve the Authority’s plan of activities and budget, as well as its annual report of activities and accounts. Furthermore, this annual report must be submitted to parliament by the government.

The Authority’s revenues include transfers from other regulatory entities, fees charged for services provided, such as merger control, clearance of agreements between undertakings or the issuing of certificates and opinions, and 40 per cent of the amount of the fines applied within the framework of its responsibilities.

Decision appeals
As regards merger control, prohibition decisions adopted by the Authority may be appealed to the minister responsible for economic affairs (the ‘extraordinary appeal’) who, in turn, may, with a duly reasoned decision, authorise the concentration, whenever the resulting benefits to fundamental economic interests are deemed to exceed the inherent disadvantages to competition.

With regard to judicial appeals, Law No. 52/2008, of 22 August 2008 (as amended by Law No. 3-B/2010, of 28 April 2010), which carries out a comprehensive reform of the organisation and functioning of the judicial courts and which has been gradually coming into force since 1 January 2009 and is expected to apply to the entire nation on 1 September 2014, amends the provisions of the Act that establish the courts that are competent to handle appeals from decisions adopted by the Authority, both in sanctioning and in administrative proceedings. This reform has a trial period ending on 31 August 2014, currently applying to only three pilot judicial districts. At the end of that period, the new regime is expected to apply to the whole national territory. This judicial review regime is, however, bound to change with the creation of a specialised court to deal with competition, regulation and supervision matters, which has already been announced and is expected to be in place in the near future.

Under the new regime, the above competence, previously entrusted exclusively to the Lisbon Court of Commerce, shall be granted to the commerce section of the territorially competent court. In the absence of such a commerce section, the commerce section of the Court of Lisbon shall be the competent one.

• The Authority’s sanctioning decisions (typically involving anti-competitive agreements, decisions and practices, abuses of economic power and infringements of the merger control rules) may be appealed to the commerce section of the competent court, under the quasi-criminal minor offences regime. Appeals that refer to decisions applying fines or other penalties will suspend the enforcement of such decisions. The appeals of decisions of the commerce section of the competent court that may be appealed are filed with the Appellate Court of Lisbon, as a court of last resort.
• Decisions of the Authority adopted in administrative proceedings set forth in the Act (notably approval - with or without conditions - decisions or prohibition decisions in merger control proceedings), as well as the decisions adopted within the above-mentioned extraordinary appeal proceedings, may be appealed to the commerce section of the competent court, following administrative procedural law. The decisions of the latter court may be appealed to the Appellate Court of Lisbon whose decisions, in turn, may be appealed, as far as issues of law are concerned, to the Supreme Court of Justice. Should the appeal of the Authority’s decision be limited to issues of law, then the appeal must be filed directly with the Supreme Court of Justice.

Marques Mendes & Associados