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-- FIDE Congress Madrid 2010 -- THE JUDICIAL APPLICATION OF EUROPEAN COMPETITION LAW Portuguese Contribution - Gonçalo Anastácio
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1 - Was competition law privately enforced in your country before Regulation 1/2003 entered into force? Competition law was not privately enforced in terms of compensation for damages in Portugal before Regulation 1/2003 came into effect. To this date, competition law has never been privately enforced in terms of compensation for damages either. However, there were some cases of private application of competition law in the Portuguese Courts, with little relevance, such as a case between a Portuguese football club and the company holding the broadcast television rights for the matches of the Portuguese football league, based on the nullity of the agreement between the two parties for breach of Article 81 of the Treaty establishing the European Community (the “EC Treaty”) (today article 101 of the Treaty on the Functioning of the European Union - “Treaty”) and of the equivalent Portuguese rule, as well as two other cases related to beer distribution agreements. The current Portuguese Competition Law
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 (hereinafter “PCL”) and the Portuguese Competition Authority –
Autoridade da Concorrência 
 (hereinafter “PCA”)
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 were created,
inter alia 
, to adapt the competition framework to the so-called modernisation, including the expected content of Regulation 1/2003. The decree-law that created the PCA was approved in the Council of
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Gonçalo Anastácio is a Partner at the Lisbon office of SRS (Sociedade Rebelo de Sousa & Advogados Associados R.L.). The author thanks Marta Flores da Silva, lawyer of the EU, Competition and Regulatory Department of SRS, for her cooperation.
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 The Portuguese Competition Law was enacted by Law No. 18/2003 of 11 June, as amended by Decree Law No. 219/2006 of 2 November, by Decree Law No. 18/2008 of 29 January and by Law No. 52/2008 of 28 August.
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 The Portuguese Competition Authority was created by Decree-Law No. 10/2003, of 11 January.
 
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Ministers on 20 November 2002 and the Regulation 1/2003 was approved by the Council on 16 December 2002. Prior to that, although Portugal has had a competition law since 1983, there was no relevant competition law awareness and enforcement in Portugal. Consequently, private enforcement was not only practically nonexistent but also not an issue to be taken into account, namely regarding possible actions for damages. Regulation 1/2003 had two virtues, firstly, at the national level it promoted the creation of the PCA and the approval of a new PCL, which contributed to an important increase in the knowledge and application of competition law in Portugal; and secondly, at the community level, it launched the basis for the discussion concerning private enforcement, with an important impact not only in Portugal, but was also in the rest of the European Union (the possibility of proceeding with an action for damages is nowadays under stronger consideration, due in part to the debate launched by the Commission with Regulation 1/2003 (Recital 7) and continued through both the Green and White Papers. Recently, there have been some press releases that referred to the likelihood of actions for damages following competition law infringements, as regards two cases recently decided by the PCA: (i) the alleged abuse of a dominant position by two major TMT companies, in the wholesale and retail markets for broadband access, and (ii) the so-called “catering cartel”, by five mass catering undertakings. Therefore, it might be the case that some developments will occur on this front in the course of 2010. 2 - If yes, was competition law applied as the main or principal issue of the dispute (
à titre principal 
)
 
or only as a subsidiary issue (
à titre d’incident 
)? Not applicable. 3 - Were stand-alone actions possible/frequent? Were follow-up actions possible/frequent? See answer to question 1, above.
 
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4 - Has the entry into force of Regulation 1/2003 substantially increased the possibility to bring actions in practice or the number of actions brought? In theory no, however the creation of the PCL and of the PCA allowed competition issues to have greater visibility, which should increase the likelihood of damages claims for competition infringements. However, at this stage, there have not been any awarding of damages for competition law infringements, which can be, in part, explained by the fact that most of the appeals from the PCA’s decisions are still pending. Although not necessarily, it is possible that the undertakings and those who suffered damages from anticompetitive practices will file uncertain and expensive damages actions, in light of a final and
res judicata 
 decision by the courts. 5 - Was there a need to modify the national competition law and/or the procedural legislation to facilitate the application of Regulation 1/2003? There was a need to modify national competition law to facilitate the application of Regulation 1/2003 and the current PCL was created
inter alia 
 to adapt to the expected content of Regulation 1/2003. 6 - Has your national legislation been modified to take into account the recommendations included in the Commission’s White Paper and Commission Staff Working Paper on Damages Actions for Breach of the EC antitrust rules? Are any of these recommendations already part of your national law? Are there concrete legislative proposals to implement any of these recommendations? There is no specific Portuguese legislation (or rules) in respect to damages actions for breach of competition rules. Portuguese competition legislation was not modified to take into account the recommendations included in the Commission’s White Paper and in the Commission’s Staff Working Paper on Damages Actions for Breach of the EC

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