Unilateral conduct

Unilateral conduct by non-dominant firms

Are there any rules applying to the unilateral conduct of non-dominant firms?

Unilateral anticompetitive behaviour by both dominant and non-dominant undertakings is taken into account in cases of an ‘abuse of economic dependence’. Article 12 of the Act prohibits the abusive exploitation by one or more undertakings of the economic dependence on them by any suppliers or clients owing to the absence of an equivalent alternative, insofar as it affects the market functioning or the structure of the competition.

An equivalent alternative is considered not to exist when:

  • the supply of the goods or services in question, notably the distribution service, can only be provided by a restricted number of undertakings; or
  • an undertaking cannot obtain identical conditions from other trading parties within a reasonable time frame.

The following may be considered abusive:

  • carrying out any of the practices mentioned in article 11(2)(a),(b),(c) and (d) of the Act (corresponding to behaviour that may amount to abusive practices, see question 15); and
  • partial or total termination of an established commercial relationship without justification, taking into account past commercial relationships, the accepted trade usages in the concerned sector of economic activity and the applicable contract terms.

In addition, as stated above (see question 21) there is special legislation governing unilateral commercial practices (Decree-Law No. 166/2013 of 27 December 2013), dealing with unfair competition practices such as price and non-price discrimination, sale below cost and refusal to sell.