Legislation and jurisdiction

Development of antitrust litigation

How would you summarise the development of private antitrust litigation in your jurisdiction?

Even before the adoption of Directive 2014/104/EU, of 26 November 2014, on actions for damages under national law for infringements of competition law provisions of the member states (Antitrust Damages Directive), it was already indisputable that private parties could file actions for damages before the Portuguese courts where the illicit behaviour at issue consisted of a violation of articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This understanding followed from the ECJ decision in Courage v Crehan, Case C-453/99, of 20 September 2001 (subsequently confirmed in other decisions, notably in Manfredi, Cases C-295/04 to C-298/04, of 13 July 2006), where the court ruled that effective protection of the rights granted by the Treaty requires that individuals who have suffered a loss arising from an infringement of the competition rules have the right to claim damages.

As regards national courts, at least two decisions of the Supreme Court of Justice, those of 21 March 1996 and of 20 May 1997, had already recognised the possibility of claiming damages under the tort liability rules set forth in the Portuguese Civil Code, where the illicit behaviour corresponds to violation of the competition rules.

In addition, in at least two other cases (the Supreme Court of Justice in a decision of 24 April 2002 and the Appellate Court of Oporto in a decision of 9 March 2004), the courts had assessed requests for the declaration of nullity of agreements for infringement of competition rules regarding abuse of a dominant position (in the former case) and restrictive agreements and practices (in the latter decision).

While the above case law indicates some evolution in the area, it is expected that the number of cases will increase following the publication of Law No. 23/2018, of 5 June, in force as of 4 August 2018 (the Private Antitrust Act), which transposed Directive 2014/104/EU, of 26 November 2014 (Private Damages Directive).

Applicable legislation

Are private antitrust actions mandated by statute? If not, on what basis are they possible? Is standing to bring a claim limited to those directly affected or may indirect purchasers bring claims?

Under the Private Antitrust Act, an undertaking or association of undertakings that has infringed competition law is under the obligation of fully indemnifying the injured parties for the damages arising out of the infringement, under the terms set forth in article 483 of the Portuguese Civil Code. This sets out the general tort liability requirements: the finding of blameful or negligent illicit behaviour, proof of injury to the claimant and the demonstration of a causal link between the illicit conduct and the damage.

Furthermore, pursuant to the Private Antitrust Act, those who have exercised a decisive influence over the infringer during the infringement are also liable for the indemnification obligation. A decisive influence may be exercised notably by means of ownership of the whole or part of the share capital, ownership or the right to use all or part of the assets of an undertaking or rights or contracts that confer decisive influence on the composition, voting or decisions by an undertaking. A decisive influence is presumed in case of ownership of 90 per cent or more of the infringer’s share capital.

The substantive and procedural rules in the Private Antitrust Act are complemented by the provisions of Law No. 19/2012, of 8 May (the Competition Act), of the Portuguese Civil Code and of the Portuguese Code of Civil Procedure.

As regards standing, under the Portuguese civil procedure rules, the plaintiff is required to have a direct interest in filing the lawsuit. This interest is expressed by the usefulness for the plaintiff of a decision upholding the claim. Unless otherwise provided for in the law, the parties to the relationship underlying the dispute, as described by the plaintiff, are considered to have a direct relevant interest. Accordingly, and depending on how it describes the said relationship, a plaintiff such as an indirect purchaser or supplier may have standing. In addition, several provisions in the Private Antitrust Act include references to indirect customers or suppliers, indicating that these latter may also have standing.

If based on statute, what is the relevant legislation and which are the relevant courts and tribunals?

As stated in question 2, private antitrust actions are governed by the Private Antitrust Act, which transposed the Private Damages Directive. The substantive and procedural rules of the Competition Act, of the Portuguese Civil Code and of the Portuguese Code of Civil Procedure, respectively, apply on a subsidiary basis. In any event, under the Private Antitrust Act the application of such substantive and procedural rules to private antitrust actions cannot render exercising the right of indemnification impossible in practice or extremely onerous. Furthermore, the application of substantive and procedural rules to actions arising out of infringements to articles 102 and 102 TFEU may not be less favourable for the injured parties than the rules for private antitrust actions arising out of national law infringements

The competition, regulation and supervision court (a specialised court created by Law No. 46/2011, of 24 June 2011, to handle competition, regulation and supervision matters, ‘the specialised court’) is competent to handle private antitrust actions, actions against co-infringers and requests for access to corresponding evidence. This court’s rulings are subject to review by the Appellate Court of Lisbon, the decisions of which, though limited to matters of law (except when the assessment of the evidence or the determination of the facts proved violates an express provision that requires a certain type of evidence for certain facts or that establishes the effects of certain types of evidence), may be appealed to the Supreme Court of Justice. Appeals of the decisions in question that exclusively involve matters of law may, under certain circumstances, be filed directly with the Supreme Court of Justice.

Private actions

Availability

In what types of antitrust matters are private actions available? Is a finding of infringement by a competition authority required to initiate a private antitrust action in your jurisdiction? What is the effect of a finding of infringement by a competition authority on national courts?

Private actions may be brought on the basis of any conduct that constitutes an infringement of the Competition Act, another member state’s competition law or articles 101 or 102 TFEU. These include cartels, abuse of dominant position or abuse of economic dependence. A finding of infringement by a competition authority is not a requirement for a private antitrust action. However, a final decision of the Portuguese Competition Authority (Authority), or of an appeal court that finally rules an appeal from such Competition Authority’s decision, which establishes the existence of an infringement constitutes a non-rebuttable presumption of the existence, nature and material, personal, temporal and territorial scope of such infringement. A final decision of another member state’s competition authority, or of an appeal court of another member state’s court of appeal, which establishes the existence of an infringement constitutes a rebuttable presumption of the existence, nature and material, personal, temporal and territorial scope of such infringement. If the decision on the merits of a private antitrust action depends on the investigation by a competition authority, or on a decision of a competition authority or of a court of appeal that is not yet final, the court assessing the private antitrust action may halt the proceedings until any of the such decisions becomes final.

Required nexus

What nexus with the jurisdiction is required to found a private action? To what extent can the parties influence in which jurisdiction a claim will be heard?

In general, and unless the parties have agreed otherwise, the domicile of the defendant determines the territorial competence of the courts.

In the case of tort liability, an action may be brought before the court of the place where the infringement took place.

Under certain conditions, the parties may agree to attribute, in writing, to a certain jurisdiction the competence to hear the claim. Nonetheless, when the Portuguese courts are competent, the specialised court is mandatorily competent.

Restrictions

Can private actions be brought against both corporations and individuals, including those from other jurisdictions?

Individuals and undertakings may file actions for damages before the Portuguese courts against either corporations or individuals if the former have suffered damage within the Portuguese territory.

Where matters involve individuals or legal entities established outside the Portuguese territory, the territorial jurisdiction of the Portuguese courts will be governed by the Lugano Convention of 30 October 2007 or Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). In the cases where the Lugano Convention and Council Regulation No. 1215/2012 are not applicable, the matter will be governed by articles 59, 62 and 63 of the Portuguese Code of Civil Procedure Code. Article 62 of the Portuguese Code of Civil Procedure prescribes that the Portuguese courts have international competence, among other situations, where:

  • the action may be brought before a Portuguese Court according to the rules of international competence established in Portuguese law;
  • the fact that constitutes the cause of action, or any of the facts that are part of such cause, has been performed in Portugal; or
  • the right invoked can only be enforced with an action brought in the Portuguese territory or it is appreciably difficult for the plaintiff to bring an action before foreign courts, provided that there is a relevant element of connection between the object of the action and the Portuguese legal system.

Private action procedure

Third-party funding

May litigation be funded by third parties? Are contingency fees available?

In principle, nothing prevents the funding of litigation by third parties.

As regards fees, the Portuguese Bar Association Statute, enacted by Law No. 145/2015 of 9 September, prohibits agreements entered into by an attorney and the client before the conclusion of the case whereby the attorney’s fees would be exclusively dependent on the result attained and by virtue of which the client would only have to pay the attorney a part of the result (‘quota litis’ arrangements). However, an arrangement consisting of the prior fixing of the amount of the attorney’s fees, even as a percentage of the amount of the claim entrusted to the attorney, is permitted. Arrangements whereby a success fee is payable alongside fees determined on the basis of the other criteria are also permitted.

As a rule, fees must be determined taking into account the time spent, the complexity and the urgency of the matter handled, the degree of the attorney’s intellectual innovation required and the results attained.

Jury trials

Are jury trials available?

No.

Discovery procedures

What pretrial discovery procedures are available?

Discovery as known in common law systems is not available under Portuguese law.

However, pursuant to the Private Antitrust Act, the court may, upon request from any party in a private damages action, request from the other party or from a third party, including public entities, the submission of evidence in their possession, subject to certain limitations. The request must be reasoned, indicate the facts intended to be proved and identify in a precise and strict manner the evidence or category of evidence whose submission is requested. The court shall order the submission of the evidence that it considers proportional and relevant for the decision of the action, refusing requests that require indiscriminate searches of data. In assessing the proportionality of a request the court shall weigh the legitimate interests of all the parties and of interested third parties, having notably taken into account the justification of the submission of the documents in the light of the claim or of the defence, the scope and costs of the submission of documents or the existence of confidential information in the evidence that must be submitted. As regards evidence containing confidential information, the court orders its submission when it considers that it is relevant for the action, subject to the adoption of effective measures for its protection, notably concealing confidential sections, conducting hearings not open to the public, restricting the number of individuals authorised to have access to the evidence, or requesting from experts the preparation of summaries of the data in an aggregate or otherwise non-confidential manner. The court shall not order the disclosure of information protected by professional secrecy under national or EU laws. Any submission order is subject to prior hearing of the holder of the evidence.

The above rules apply to the access to evidence before the action is brought to court.

As regards requests to access the evidence included in a competition authority’s proceedings, the above rules also apply. In addition, the court may only order the submission of this evidence when none of the parties or any third party may reasonably submit it. In assessing the proportionality of a request for submission of evidence included in a competition authority’s proceedings the court shall also take into account, besides the aspects mentioned above, if the request for submission is specific in respect of the nature, object and contents of the evidence, or is rather an indiscriminate request, if the disclosure is requested within an action already initiated or if it is necessary to preserve the public enforcement of competition law, notably the protection of the investigation. The submission of (i) documents specifically prepared by an individual or legal entity for a competition authority’s proceedings, (ii) documents prepared by a competition authority and sent to the parties in the framework of proceedings or (iii) settlement proposals that have been withdrawn may only be ordered by the court after the competition authority’s proceedings are finalised. Furthermore, the court may not order the submission of evidence that includes leniency statements and settlement proposals. In this respect, a party that has requested the submission of evidence that includes leniency statements (for both full immunity and reduction of fines) and settlement proposals may on reasoned grounds request the access to such evidence for the exclusive purpose of confirming that the evidence in question includes such elements. The court may seek the assistance of the competition authority and hear the authors of the concerned documents to assess the request and shall not permit the access to these documents by other parties to the action or by third parties.

The Private Antitrust Act also establishes some limits as to the use of evidence obtained exclusively through the access to a competition authority’s proceedings. Leniency statements and settlement proposals obtained exclusively through the access to a competition authority’s proceedings are not admitted as evidence in private antitrust actions. Documents specifically prepared by an individual or legal entity for a competition authority’s proceedings, documents prepared by a competition authority and sent to the parties in the framework of proceedings or settlement proposals that have been withdrawn cannot be used as evidence in private antitrust actions if they were obtained exclusively through the access to a competition authority’s proceedings. Other evidence exclusively obtained through such access may only be used as evidence in private antitrust actions by the person who has obtained them, by a successor of this latter or by a person who has acquired the right to the compensation.

Failing to comply with an order for submission of documents, destroying or concealing, or otherwise rendering impossible the access to evidence whose submission is ordered, failing to comply with measures ordered by the court to preserve confidentiality or violating the limits for using evidence included in a competition authority’s proceedings is punishable with procedural fines in the amount imposed by the court ranging from €5,100 up to €510,000. The court may further impose periodic penalty payments ranging from €510 to €51,000 per day of delay. In addition, the court can freely assess the significance of any of the above behaviour for evidence purposes and the burden of proof may be shifted.

Admissible evidence

What evidence is admissible?

All types of evidence are admitted, except if otherwise provided for in the law (for example, regarding some facts the law may require a specific type of document, such as a public registration certificate).

Types of evidence more commonly used include testimony, documents, expert opinions, confessions and inspections.

Under the Private Antitrust Act:

  • evidence that includes leniency statements (for both full immunity and reduction of fines) and settlement proposals obtained exclusively by accessing a competition authority’s proceedings is not admitted as evidence in private antitrust actions;
  • documents specifically prepared by an individual or legal entity for a competition authority’s proceedings, documents prepared by a competition authority and sent to the parties in the framework of proceedings or settlement proposals that have been withdrawn and were obtained exclusively by accessing a competition authority’s proceedings but not admitted as evidence in private antitrust actions until such proceedings are finalised; and
  • other types of evidence obtained exclusively by accessing a competition authority’s proceedings may only be used as evidence in private antitrust actions by the person who obtained them, or by his or her successor, or by the person who acquired the right to be indemnified.

The court freely assesses the evidence submitted and decides in accordance with its beliefs, with the exception that, as stated above, to prove certain facts the law may require the fulfilment of special formalities.

Legal privilege protection

What evidence is protected by legal privilege?

As stated in question 9, the court shall not order the disclosure of information protected by professional secrecy under national or EU law.

In this regard it should be noted that, as a general rule, under Portuguese law every person has a duty of cooperation with the courts in discovering the truth.

Under the Private Antitrust Act, in the case of private antitrust actions the refusal to cooperate is legitimate if compliance involves violation of the physical or moral integrity of individuals, violation of private or family home life, in correspondence or in the telecommunications or the violation of professional secrecy, public servants’ secrecy or state secrecy.

Criminal conviction

Are private actions available where there has been a criminal conviction in respect of the same matter?

Under the Competition Act, competition law infringements are not considered crimes, but rather quasi-criminal minor offences, without prejudice, however, to any criminal liability that may arise from any behaviour qualified as criminal associated with a competition law infringement.

It may occur, therefore, that a competition law infringement that in itself does not constitute a crime may also involve behaviour that may entail criminal proceedings. However, any criminal conviction that may arise from such criminal proceedings shall not, in principle, prevent the filing of a private antitrust lawsuit based on the infringement of the competition law rules and not on the conduct that originated the criminal proceedings.

Utilising of criminal evidence

Can the evidence or findings in criminal proceedings be relied on by plaintiffs in parallel private actions? Are leniency applicants protected from follow-on litigation? Do the competition authorities routinely disclose documents obtained in their investigations to private claimants?

Evidence or findings in criminal proceedings against an undertaking may, with limitations, be relied upon by plaintiffs in parallel private actions. In fact, the parties’ or witnesses’ statements, or evidence produced by a panel of experts, may be considered for these latter actions, but only if such evidence has been obtained in proceedings in which the undertaking has been heard.

Under the Portuguese leniency regime, the Competition Authority can grant immunity or a reduction of fines in proceedingss for quasi-criminal minor offences that concern agreements and concerted practices prohibited by article 9 of the Competition Act and (where applicable) article 101 TFEU. However, leniency applicants, although benefiting from the protection that, to a certain extent, is granted by the rules regarding the access to information are not protected from the possibility of being subject to follow-on litigation. In any event, as stated in question 10, evidence that includes leniency statements (for both full immunity and reduction of fines) obtained exclusively by accessing a competition authority’s proceeding is not admitted as evidence in private antitrust actions.

Under the Competition Act, the Authority must publish on its website the final decisions adopted in restrictive practices proceedings, ensuring the protection of business secrets and other information considered confidential. In addition, the access to the file may be granted to any individual or legal entity that demonstrates a legitimate interest and applies for such access. However, information classified as confidential for business secrets’ reasons, which is used as evidence by the Authority, may only be obtained by an attorney or outside economic adviser within the framework of the exercise of rights of defence or of appeals of the Authority’s decisions in which such documents were used as evidence.

Stay of proceedings

In which circumstances can a defendant petition the court for a stay of proceedings in a private antitrust action?

A defendant may request that the court stay the proceedings, and the court may of its own volition order such stay, in cases where the matter is being assessed in proceedings opened by the European Commission, in accordance with article 16 of Council Regulation (EC) No. 1/2003 of 16 December 2002.

In addition, as stated in question 4, if the decision on the merits of a private antitrust action depends on the investigation by a competition authority, or on a decision of a competition authority or of a court of appeal that is not yet final, the court assessing the private antitrust action may halt the proceedings until any of these decisions becomes final.

Standard of proof

What is the applicable standard of proof for claimants? Is passing on a matter for the claimant or defendant to prove? What is the applicable standard of proof?

As a rule, the burden of proof relative to each fact submitted to the court rests with the party that invoked the fact in question to substantiate its rights.

The Private Antitrust Act establishes specific rules with respect to evidence related to the passing-on defence. The defendant bears the burden of proof whenever the claimant passing on the whole or part of the overcharge resulting from the infringement of competition law is invoked. In a private antitrust action whose claim is grounded on the passing on of the overcharge to the indirect customer or claimant, the latter bears the burden of proof. Nevertheless, the Private Antitrust Act presumes passing-on whenever:

  • the defendant has committed an infringement of competition law;
  • the infringement of competition law has resulted in an overcharge for the defendant’s direct purchaser; and
  • the indirect purchaser has purchased the goods or services affected by the infringement, or has purchased goods or services derived from or containing them.
Timeframe

What is the typical timetable for collective and single party proceedings? Is it possible to accelerate proceedings?

It is not possible to anticipate precisely what the length of proceedings may be, as it may vary greatly from case to case. However, in view of the complexity inherent in most actions for damages based on the infringement of the competition rules, and considering the usual duration of proceedings relating to damages claims, the adoption of a decision by the first instance court may take a considerable time after the lawsuit is filed (easily over two years after the initiation of the proceedings). Moreover, after the first instance court adopts a decision, in some cases two degrees of appeal to higher courts will be available. These appeals will normally take another one to two years. It is not possible to accelerate the proceedings.

Limitation periods

What are the relevant limitation periods?

Under the Private Antitrust Act, without prejudice to the absolute limitation period of 20 years from the date of the act causing the damage, private antitrust actions must be initiated within five years of the date the injured party has knowledge, or from the date on which it may reasonably be presumed that it had knowledge of:

  • the behaviour at issue and that it constitutes an infringement to competition law;
  • the infringer’s identity; and
  • the fact that the infringement to competition law has caused damage to the injured party, although the full extent of the damage is not yet known.

The deadline only starts after the infringement ends.

In the case of joint liability among co-infringers and for the purpose of establishing the liability of a co-infringer that is either a small or medium-sized enterprise or a company to which full immunity has been granted in leniency proceedings, the limitation period applicable to injured parties, who are not customers or suppliers, as regards such small or medium-sized enterprise or full immunity beneficiary is five years. It starts on the date enforcement proceedings against the other co-infringers is extinguished by lack of assets, insolvency or by any other judicial decision that confirms the co-infringers’ inability to pay.

The limitation period is suspended if a competition authority initiates an investigation related to the infringement at issue in the antitrust action. Such suspension ends one year after the decision declaring the infringement becomes definitive or the proceedings are otherwise terminated.

The limitation period is suspended in relation to the parties that participate, have participated or have been represented in out-of-court settlement proceedings during the time such proceedings last.

The limitation period is further interrupted (ie, the time elapsed before the interruption is not considered) upon the summoning or judicial notification of the infringer of any act that expresses the claimant’s intention of exercising the right.

Appeals

What appeals are available? Is appeal available on the facts or on the law?

Decisions of first instance courts in private antitrust actions may, in principle, be the object of appeals (see question 3).

Collective actions

Availability

Are collective proceedings available in respect of antitrust claims?

Collective actions for infringements to competition law may be brought under Law No. 83/95 of 31 August 1995, which defines the regime applicable to ‘people actions’, confers upon any citizens (legal entities or professionals are excluded) or associations and foundations that promote certain general interests the right to claim compensation arising from an injury caused by the violation of such general interests. Besides the regime set forth in this statute, the Private Antitrust Act establishes, notably, that:

  • consumer protection associations and foundations, as well as other associations of undertakings whose associates have been injured by the infringement to competition law at issue have standing to initiate the action;
  • the decision that condemns the defendants establishes the criteria to identify the injured parties and for the quantification of the damages that each individually identified injured party has suffered;
  • if all the injured parties are not individually identified, the court shall fix a global amount of the compensation and, if not sufficient, such global amount shall be distributed among the injured parties individually identified on a pro rata basis; and
  • the decision shall indicate the entity responsible for the collection, administration and payment of the compensation to injured parties who are not individually identified.
Applicable legislation

Are collective proceedings mandated by legislation?

See question 19.

Certification process

If collective proceedings are allowed, is there a certification process? What is the test?

Not applicable.

Have courts certified collective proceedings in antitrust matters?

Not applicable.

Opting in/ out

Can plaintiffs opt out or opt in?

In ‘people actions’, the plaintiff represents, in principle, all owners of the rights or interests without need for any mandate or express authorisation.

Under the law, the above owners of the rights or interests who do not intervene in the proceedings are granted the possibility of, within a period fixed by the court, intervening in the proceedings as parties thereto, accepting them in the current phase, and declaring whether they agree to be represented by the plaintiff or, on the contrary, whether they wish to be excluded from such representation. The silence of the owners of the rights or interests shall be deemed as acceptance of representation by the plaintiff, without detriment to the right of the owners to refuse the representation by means of an express statement in the proceedings until the end of the evidence-taking or equivalent phase.

Judicial authorisation

Do collective settlements require judicial authorisation?

There are no deviations in this respect from the general civil procedure rules. As in ordinary cases, any judicial settlement is subject to confirmation by the court.

National collective proceedings

If the country is divided into multiple jurisdictions, is a national collective proceeding possible? Can private actions be brought simultaneously in respect of the same matter in more than one jurisdiction?

Not applicable.

Collective-proceeding bar

Has a plaintiffs’ collective-proceeding bar developed?

No.

Remedies

Compensation

What forms of compensation are available and on what basis are they allowed?

Under the Private Antitrust Act, an undertaking that infringes competition law is under the obligation of fully indemnifying the injured parties for the damage caused by the infringement.

The indemnification obligation includes both the actual damages and the benefits that the injured party did not receive by virtue of the infringement, calculated as at the moment the damage has occurred, plus late payment interests from the date of the decision until full payment.

The Private Antitrust Act further presumes that the members of cartels are responsible for the damage caused by the infringements carried out.

If the calculation of the exact amount of the damages is practically impossible or excessively difficult the court may make such calculation by resorting to an approximate estimation, and may for such purposes take into account the Communication from the Commission on quantifying harm in actions for damages based on breaches of articles 101 or 102 of the TFEU (2013/C 167/07), of 13 June 2013.

The Competition Authority shall, upon request from the court, assist this latter in the quantification of the damages, but the Competition Authority may upon reasoned request ask the court to be released from such assistance.

Other remedies

What other forms of remedy are available? What must a claimant prove to obtain an interim remedy?

If there is a justified fear of serious damage to a right that would be difficult to rectify, interim remedies that may be adequate to preserve or protect the threatened right may be requested from the court. These interim remedies have an urgent nature and are aimed at preventing risks arising out of any delays to which the main proceedings (ie, the private antitrust action) may be subject. Moreover, interim remedies depend on such main proceedings. In the interim remedies proceedings, the claimant must prove the likelihood of the existence of its right (fumus boni iuris) and of the irreparable damage it would suffer in the absence of the interim measures (periculum mora).

Punitive damages

Are punitive or exemplary damages available?

No.

Interest

Is there provision for interest on damages awards and from when does it accrue?

See question 27.

Consideration of fines

Are the fines imposed by competition authorities taken into account when setting damages?

As mentioned in question 27, the indemnification obligation includes both the actual damages and the benefits that the injured party did not receive by virtue of the infringement. Possible fines imposed by the Portuguese Competition Authority, the quantification of which is subject to specific criteria set out in article 44 of the Act, are not to be taken into account by a court in fixing the amount of the compensation for damages.

Legal costs

Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?

Two types of legal costs should be considered: on the one hand, the ‘court fee’, and on the other, expenses relating to services requested by the court and other costs incurred by the court in connection with the proceedings (for example, costs resulting from the intervention of experts appointed by the court).

The amount of both court fees and expenses applicable in each case is defined in accordance with the Regulation on Judicial Costs, and thus may be estimated by plaintiffs prior to filing the action. The amount of the court fees largely depends on the initial amount of the claim or claims made before the court.

Legal costs are initially borne by all the parties. However, at the end of the proceedings, the court shall determine the proportion of the costs to be borne by each party. The basic rule is that the ‘losing party’ shall bear the full amount of the costs. In case of partial loss, the costs shall be divided proportionally among the parties concerned. As regards attorneys’ fees, under the Regulation on Judicial Costs, the winning party may request the losing party to pay the former’s attorneys’ fees. However, a losing party is not liable for attorneys’ fees exceeding 50 per cent of the applicable court fees.

Joint and several liability

Is liability imposed on a joint and several basis?

Under the Private Antitrust Act, the liability among co-infringers is, in principle, joint and several.

However, if the damage has been caused by a small or medium-sized enterprise the latter shall only be liable:

  • as regards its own customers or suppliers if its market shares in the markets affected by the infringement have been lower than 5 per cent during the infringement, and the application of the joint liability rules would irreversibly damage its economic viability and fully depreciate its assets; and
  • vis-à-vis other injured parties if they are not able to obtain from the other co-infringers full compensation for the damage suffered.

These limitations shall not apply if the small or medium-sized enterprise at issue has led the infringement or coerced other undertakings or has been previously condemned by a definitive decision for another infringement to competition law.

If the damage has been caused by an undertaking that has benefited from full immunity in leniency proceedings the latter shall only be liable vis-à-vis its own direct or indirect customers or suppliers and as regards other injured parties if they are not able to obtain from the other co-infringers the full compensation of the damages suffered.

The liability among co-infringers is proportional to its responsibility for the damages caused by the infringement and is presumed equivalent to the average of the infringer’s market shares in the markets affected by the infringement. However, the amount to be borne by an undertaking that has benefited from full immunity in leniency proceedings cannot exceed the damages it has caused to its own direct or indirect customers or suppliers.

Contribution and indemnity

Is there a possibility for contribution and indemnity among defendants? How must such claims be asserted?

See question 33.

Passing on

Is the ‘passing on’ defence allowed?

Passing on defence is allowed (see notably question 15).

Other defences

Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?

Besides the passing on defence, defendants may use any defence allowed against tort liability claims.

Alternative dispute resolution

Is alternative dispute resolution available?

Unless a dispute is, under special law, exclusively subject to the jurisdiction of a judicial court and the dispute concerns rights that cannot be waived, the parties may agree to submit any dispute, including tort liability disputes, to an arbitration court to be constituted and to operate under Law No. 63/2011, of 14 December 2011.

Parties may also seek to resolve a dispute through mediation.

Updates & Trends

Recent Developments

Are there any other current developments or emerging trends that should be noted?

Hot topics38 Are there any emerging trends or hot topics in the law of private antitrust litigation in your country?

In 2018 the most noteworthy event to be highlighted in Portugal in the area of private antitrust enforcement (and of competition law infringements in general) has been the adoption of Law No. 23/2018, of 5 June, in force as of 4 August 2018 (Private Enforcement Act), which transposed into national law Directive 2014/104/EU, of 26 November 2014 (Private Damages Directive).

The new law was expected (and due) for quite some time and governs various aspects, which include:

  • the rules to consider in the compensation calculation;
  • the liability of co-infringers, the limitation period;
  • the value as evidence of competition authorities’ and appeal courts’ decisions:
  • passing on;
  • actions brought by claimants in different production or distribution levels;
  • effects of out of court settlements;
  • access to evidence (including evidence that is contained in proceedings of a competition authority);
  • rules for preservation of evidence;
  • sanctions in access to evidence matters;
  • consumer protection (notably class actions); and
  • jurisdiction.

The substantive and procedural rules in the Private Enforcement Act are complemented by the provisions of the Competition Act (Law No. 19/2012, of 8 May), of the Portuguese Civil Code and of the Portuguese Code of Civil Procedure.

The adoption of the above legislation, which has increased the awareness of private enforcement, is expected to increase the number of private damages actions brought before the courts in Portugal.