News - Competition Law And Policy 4th Quarter 2017

PORTUGAL

1. COURTS

   Competition Court confirms judgment against Ford Lusitana for allegedly providing false, inaccurate or incomplete information

   In its judgment of 13 October 2017, the Court of Competition, Regulation and Supervision (Competition Court) confirmed the full amount of the fine of €150,000 that had been applied by the Portuguese Competition Authority (PCA) to Ford Lusitana, for alleged provision of false, inaccurate or incomplete information in reply to a request for information by the PCA in the use of its supervisory powers.

   The underlying proceedings brought by the PCA against Ford Lusitana, as well as against other car brands, in relation to the companies' car warranty clauses, was concluded following the presentation of commitments by the company, which were made compulsory by the PCA in 2015.

   Court of Appeal confirms judgment against Firmo Papéis e Papelarias for alleged concerted practices in the office supplies sector

   The Lisbon Court of Appeal decided, in a judgment dated 17 October 2017, that the company Firmo Papéis e Papelarias, S.A. and another four companies that produce and sell envelopes, acted in a concerted manner in the market (cartel), sharing clients, fixing prices and manipulating tenders to supply envelopes.

   The Portuguese Competition Authority (PCA) had initially applied a fine of €160,000 to the company. The Court of Competition, Regulation and Supervision (Competition Court) then reduced this fine to €50,000 and it has now been confirmed by the Lisbon Court of Appeal.

   The companies Copidata, S.A. and Tompla - Indústria Internacional do Envelope, Lda., which are part of the same economic group, achieved a 100% reduction in the fine (immunity) because they were the companies which, in October 2010, informed the PCA, under the leniency programme, of the existence of a concerted practice restricting competition.

   In relation to Papelaria Fernandes - Indústria e Comércio, S.A., despite it being found to have committed the offence, it was not possible to set a fine because of its declaration of insolvency.

   The company Antalis Portugal, S.A. had already been ordered, in May 2016, to pay a fine of €440,000 for its involvement in the same offence. The early conclusion of the proceedings in relation to this company was possible because of its cooperation under the leniency programme and settlement procedure, which allowed the company to benefit from a reduction in the fine applied to it.

2. COMPETITION AUTHORITY

   Council of Ministers approves draft law reinforcing competition rules and regulating actions for damages for infringement of Portuguese competition law

   In the Council of Ministers meeting held on 19 October 2017, a draft law was approved transposing Directive 2014/104/EU, which regulates the possibility of having civil claims for damages based on violations of competition law.

   Amongst others, the draft law amends the Portuguese Competition Act and the Portuguese Law of the Organisation of the Judicial System, attributing jurisdiction for civil actions for damages as a result of competition infringements to the Competition, Regulation and Supervision (Competition Court).

   The draft law seeks to make it easier for anyone that suffers losses resulting from competition law violations to obtain compensation, and to provide a link between the public and private enforcement of competition law. It enacts Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 and was preceded by another draft and a period of public consultation organised by the Portuguese Competition Authority (PCA).

   After the Council of Ministers' approval, the draft law was delivered at the Assembly of the Republic, where it is under consideration by the Committee on Economy, Innovation and Public Works.

   Competition Authority's report identifies barriers to entry in the supply of natural gas to industry

   In the report, issued on 25 October 2017, the Portuguese Competition Authority (PCA) identified barriers to entry and expansion in the supply of natural gas to industry that could reduce the competitive pressure in the market.

   According to the PCA, the industrial customers' segment has a high degree of concentration, with the two largest operators in this segment, Galp and EDP, supplying more than 70% of the market. In addition, in the report the PCA identifies a number of other issues that are capable of jeopardising market efficiency. These include the insufficient integration of markets at an Iberian level and the duplication of transport network usage tariffs in cross-border trade between Portugal and Spain. Finally, the PCA has also established the existence of high costs of access to the liquefied natural gas (LNG) terminal in Sines for small operators.

   The report on the sector-based inquiry into the supply of natural gas to industrial consumers can be consulted here.

   Competition Authority intervenes in the market for specialised credit to eliminate the restrictive potential of the information exchange system

   On 23 April 2015, the Portuguese Competition Authority (PCA) opened proceedings against the Portuguese Association of Specialised Consumer Credit Providers (ASFAC) and the Portuguese Association of Leasing, Factoring and Renting (ALF), as well as against the respective associate members, because of indications of infringements of competition rules, specifically the existence of a system for the exchange of sensitive strategic information organised by the two associations and their associated companies.

   ASFAC and ALF offered a set of commitments, as an answer to the concerns of the PCA, respectively, on 13 September 2017 and 26 October 2017. These commitments were accepted and made compulsory by the PCA.

   The highlights among the set of commitments offered by ALF, which will be monitored by the PCA, are i) strengthening of requirements of age of the data exchanged between the associated companies, reducing its strategic value and, hence, its restrictive potential;

   ii) amending the reciprocity rules in the collection and dissemination of information.

   The highlights among the commitments offered by ASFAC are i) strengthening of requirements of age of the data exchanged between the associated companies, reducing its strategic value and, hence, its restrictive potential; ii) the provision of full access to such data not only to the associated companies, but also to non-member companies which request it on the basis of their interest in preparing for entry into the market.

   Under the Portuguese competition law, the PCA may accept commitments proposed by investigated companies if they are likely to eliminate the anticompetitive effects of the practices in question, and this leads to a dismissal of the ongoing proceedings.

   Competition Authority signs memorandum of understanding with IMPIC

   Through this memorandum of understanding signed on 15 November 2017, the Portuguese Competition Authority (PCA) will be granted direct and permanent access to the national public procurement databases of the Institute for Public Procurement, Real Estate and Construction (IMPIC), which is the entity that manages the Public Procurement Website (Portal Base) and the Public Works Observatory.

   The access to this information will, on the one hand, make it easier for the PCA to detect bid-rigging in public procurement at its own initiative and, on the other hand, accelerate the investigation of such practices.

   Since 1 November 2009, procurement procedures carried out under the Portuguese Code of Public Contracts are mandatorily processed on electronic platforms at every stage of the formation of a contract, from the date of the notice of invitation to tender is published to the date of the conclusion of the contract. This data is collected on the Public Procurement Website given its interoperability with all electronic platforms involved with public procurement procedures.

   As of 1 January 2018, the PCA will be allowed to access all the information on contracts available on the electronic platforms, including the Public Procurement Website, directly without the need for an information request.

   Competition Authority fines Vallis Group for alleged non-notified merger

   On 27 December 2017, the Portuguese Competition Authority (PCA) applied a fine of €38,500 to the companies Vallis Sustainable Investments I, Holding S.à.r.l., and Vallis Capital Partners, SGPS, S.A. for allegedly concluding a merger without prior notification to the PCA. The merger concerned the acquisition of sole control of 32 Senses, a network of dental care clinics.

   The parties introduced a settlement submission during the proceedings whereby they admitted the facts of the case, for which they assumed responsibility.

   The Portuguese Competition Act requires that merging companies notify transactions that meet certain criteria prior to...