Enforcing a new regime – Marques Mendes & Associados

It has been ‘all-change’ in Portugal’s competition regime, says Mário Marques Mendes, Founding Partner of Marques Mendes & Associados. A new law and personnel change at the Portuguese Competition Authority (PCA) have seen a revamp in enforcement attitudes. Professor António Ferreira Gomes, former Head of the PCA’s Merger Control Department, was also recently appointed as the new President. And the combination is expected to lead to a fresh approach to enforcement.

“The law strengthens the investigations remit at the PCA,” Marques Mendes says. “It has more powers to carry out searches and serve orders notably to bring it in-line with EU enforcement rules. Other new powers allow it to investigate the residences and domiciles of directors and employees and, while guaranteeing the defence rights of the party under investigation, utilise evidence that may contain sensitive business secrets.”
The Competition Act paves the way for the authority to establish priorities and specific targets for competition enforcement. “Cartels are on the radar and Gomes has created the first, dedicated PCA cartel unit,” Marques Mendes explains. Leniency, which is now dealt with in the Act itself, and under which immunity from fines or reduction of fines may be granted, is something that Gomes has also often highlighted, he notes.
In this regard, the new proposal for a Damages Directive for Competition Infringements may be cause for concern, says Marques Mendes. “While it adopts a number of welcomed measures to facilitate damages actions, it may fall short of the stated purpose of not reducing the incentives for companies to cooperate with competition authorities.” The fact that only leniency corporate statements receive full protection regarding disclosure of evidence from the file of a competition authority, he adds, may have a chilling effect on leniency applications.