Thursday, 25 February 2010 19:00

Assessing the changes to come in Portuguese competition regulation - Vieira de Almeida

alt

This year will see changes to Portugal's Competition Act that may impact merger control, notification and judicial review, says Nuno Ruiz, Head of EU & Competition at Vieira de Almeida

"Competition law in Portugal is already being transformed by the financial crisis, but legislative changes are also forthcoming this year. The problem is that, while there are evident areas of concern, a lack of public consultation means that nobody in the market is yet entirely sure what to expect."

Last year's change of the Board of the Portuguese competition authority (Autoridade da Concorrñncia – AdC), and the appointment of Manuel Sebastião as the new President, was almost universally welcomed, says Ruiz.

There is now an expectation that the investigative momentum previously seen will be maintained with some significant, albeit subtle, policy differences.

"The internal restructuring and reorganisation of the AdC will, it is hoped, transmit into positive practical changes. As a result of the crisis there are fewer merger cases and this should have allowed additional resources to target behavioural, including cartel, issues. In which respect, there is also an expectation of a more detailed analysis of cases."

The AdC seems now to be looking to take on more of a market 'watch dog' role, believes Ruiz, with no intention of helping to reshape markets. Last December finally saw the first convictions under Portugal's 2007 leniency and whistle-blowing rules, for collusion in the catering sector. Whether this is the first of many cases to come is not clear.

In addition, last Autumn saw major fines handed down to Portugal Telecom (PT), and its former subsidiary Zon Group, in a long-running abuse of dominance investigation by the AdC affecting the wholesale and retail markets for broadband access. PT was fined €45m and Zon €8m.

"The case stems from the start of the decade, but is notable for the severity of the penalties involved and that previous, arguably worse, infringements in France and Germany have resulted in less substantial penalties," says Ruiz.

He nonetheless believes that the Authority is set to become much more active and investigations more high profile. But in order for competition enforcement to become a real success in Portugal clear procedural issues still need to be fixed, and this is why there is such interest in the amendments being considered by the government.

"Many in the legal community agree that there is a need to change certain aspects of the law, mostly on the procedural side, but there is still no clear idea of what the Government will propose, or indeed what the position of the AdC will be on what is being suggested."

Criticism of a lack of public consultation is not new, says Ruiz. Some of the evident flaws in Portugal's 2003 Competition Act derive precisely because there was a lack of market input prior to its adoption.

"Among the issues that stand out are those around merger control procedures, including market share criteria, and the need for a simplified notification procedure, but also the interplay between Portuguese and EU rules – within Europe, Portugal may be a relatively small market but nonetheless important substantive issues need to be addressed."

Among these is the anomaly between merger control prenotification system. Important issues also surround the validity of merger SLC testing, the right of defence in infringement procedures, the judicial review deadlines and competent courts, and third parties' abilities to gain access to files held by the AdC, he says.

In addition, improvements are also required in the antitrust arena. "The system as it currently stands is designed for minor infringements and struggles in cases with a significant degree of complexity.

There are also no guidelines around the level of fines that may be imposed for competition violations, which creates extra uncertainty."

It is also unacceptable that a substantial amount of any fines recovered go straight into the AdC's budget, says Ruiz.

"We all want a robust competition authority, but there is an evident conflict of interest between being an independent regulator and having its capabilities determined by how much money it can recover. Hopefully the amends that are proposed will start to look at, at least, some of these issues."

Read 1887 times Last modified on Monday, 10 June 2013 16:04

This website uses cookies

We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we'll assume that you are happy to receive all cookies on the IberianLawyer website. However, you can change your cookie settings at any time. Learn more

I agree

What do I need to know about cookies?

A cookie is a small text file that’s stored on your computer or mobile device when you visit a website. We use them to:

  • Remember your preferences
  • Tailor our sites to your interests.

There are different types of cookies

First party cookies

These are set by the website you’re visiting. And only that website can read them.  In addition, a website might use a separate company to analyse how people are using their site. And this separate company will set their own cookie to do this.

Third party cookies

These are set by someone other than the owner of the website you’re visiting. 

Some IberianLawyer web pages may also contain content from other sites like Vimeo or Flickr, which may set their own cookies. Also, if you Share a link to a IberianLawyer page, the service you share it on (e.g. Facebook) may set a cookie on your browser.

The IberianLawyer has no control over third party cookies.

Advertising cookies

Some websites use advertising networks to show you specially targeted adverts when you visit. These networks may also be able to track your browsing across different sites.

IberianLawyer site do use advertising cookies but they won’t track your browsing outside the IberianLawyer.

Session cookies

These are stored while you’re browsing. They get deleted from your device when you close your browser e.g. Internet Explorer or Safari.

Persistent cookies

These are saved on your computer. So they don’t get deleted when you close your browser.

We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.

Other tracking technologies

Some sites use things like web beacons, clear GIFs, page tags and web bugs to understand how people are using them and target advertising at people.

They usually take the form of a small, transparent image, which is embedded in a web page or email. They work with cookies and capture data like your IP address, when you viewed the page or email, what device you were using and where you were.

How does the Iberian Lawyer use cookies?

We use different types of cookies for different things, such as:

  • Analysing how you use the IberianLawyer
  • Giving you a better, more personalised experience
  • Recognising when you’ve signed in

Strictly Necessary cookies

These cookies let you use all the different parts of Iberian Lawyer. Without them services that you have asked for cannot be provided.

Some examples of how we use these cookies are:

  • Signing into the IberianLawyer
  • Remembering previous actions such as text entered into a registration form when navigating back to a page in the same session
  • Remembering security settings which restrict access to certain content.

Performance cookies

These help us understand how people are using the IberianLawyer online, so we can make it better. And they let us try out different ideas.
We sometimes get other companies to analyse how people are using the IberianLawyer online. These companies may set their own performance cookies You can opt out of these cookies here.Some examples of how we use these cookies are:

  • To collect information about which web pages visitors go to most often so we can improve the online experience
  • Error management to make sure that the website is working properly
  • Testing designs to help improve the look and feel of the website.
Cookie nameWhat it's for
Google DoubleClick The IberianLawyer uses Google DoubleClick to measure the effectiveness of its online marketing campaigns.Opt-out of DoubleClick cookies
Google Analytics From time to time some IberianLawyer online services, including mobile apps, use Google Analytics. This is a web analytics service provided by Google, Inc. Google Analytics sets a cookie in order to evaluate use of those services and compile a report for us.Opt-out of Google Analytics cookies