Anticompetitive agreements

Assessment framework

What is the general framework for assessing whether an agreement or concerted practice can be considered anticompetitive?

Articles 9 and 10 of Law No. 19/2012 of 8 May provide, in line with article 101 of the Treaty on the Functioning of the European Union, the general framework for assessing whether an agreement or practice can be considered anticompetitive.

Any agreement or practice having as its object or effect the prevention, distortion or restriction of competition in the domestic market, in whole or in part, and to a considerable extent, is deemed anticompetitive and therefore prohibited, in particular those that:

  • directly or indirectly fix purchase or selling prices or any other trading conditions;
  • limit or control production, markets, technological development or investment;
  • share markets or sources of supply;
  • apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
  • make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Technology licensing agreements

To what extent are technology licensing agreements considered anticompetitive?

There are no guidelines or specific provisions regarding licensing agreements, and European regulations are applicable.

Co-promotion and co-marketing agreements

To what extent are co-promotion and co-marketing agreements considered anticompetitive?

There are no guidelines or specific provisions regarding co-promotion and co-marketing agreements, and European regulations and guidelines are applicable.

Other agreements

What other forms of agreement with a competitor are likely to be an issue? How can these issues be resolved?

The agreements that are likely to be an issue normally relate to the predetermination of prices by pharmaceutical companies, the sharing of sources of supply, or other types of restrictions to the production or development of medicines. However, any agreement that directly or indirectly prevents, distorts or restricts competition is not allowed. Confidentiality provisions would probably not resolve the issue, since in the end, the effect of such agreements on the market will determine whether free competition is affected.

Issues with vertical agreements

Which aspects of vertical agreements are most likely to raise antitrust concerns?

The vertical restrictions most likely to raise antitrust concerns are those that qualify as hardcore restrictions under the European Commission’s Vertical Restraints Block Exemption Regulation.

The Portuguese Competition Authority (AdC) considered that the companies Baxter-Médico Farmacêutica Lda and Glintt – Business Solutions Lda entered into an agreement that fixed the sale prices of unit-dose automatic machines from which vertical constraints to competition arose. The Court of Commerce and the Court of Appeal of Lisbon confirmed the AdC’s understanding.

Patent dispute settlements

To what extent can the settlement of a patent dispute expose the parties concerned to liability for an antitrust violation?

To date, there have been no publicly disclosed decisions by the AdC that regard the settlement of patent disputes. However, should such settlements have as their object or effect the prevention, distortion or restriction of competition, they would be in breach of antitrust provisions and, therefore, expose the parties to liability. Patent disputes are subject to arbitration courts.

Joint communications and lobbying

To what extent can joint communications or lobbying actions be anticompetitive?

If these actions can configure a concertation to interfere in the market, to distort prices or to harm consumers, they may be deemed anticompetitive. Joint communications raise suspicions and investigations and are therefore not advisable.

The AdC considers that trade associations facilitate the contact between competitors and therefore that the collusion practices are often born from those contacts. The AdC is also concerned with the exchange of information that takes place within trade associations, in particular future prices or amounts of supply.

In fact, in the AdC guidelines for trade associations, it is drawn to the attention of the latter that their decisions and initiatives may restrict competition if they enable or promote the coordination of the strategic behaviour of companies, interfering with free competition and the autonomy of economic agents.

Decisions and recommendations that would limit the individual freedom of competitors to define their commercial policy would pose a problem and probably be seen as anticompetitive. For example, no joint communication or lobbying action can interfere in the price policy of each economic agent. In particular, no trade association can impose minimum or maximum prices, or even recommend prices. However, lobbying for the government to change the legal framework for pricing medicines would be unlikely to be deemed as anticompetitive.

In the same way, appeals to boycotts or the collective refusal to provide goods as a way of pressure or restriction of individual liberty would be deemed as anticompetitive.

Public communications

To what extent may public communications constitute an infringement?

Any communication that aims to affect the market could be an infringement. If the contents are an appeal to a boycott or to refuse the provision of a service or goods, for example to a competitor or any other economic agent, this communication would be seen as an infringement. If the public communication is subscribed by several companies, this would be a concerted action to harm another player.

Exchange of information

Are anticompetitive exchanges of information more likely to occur in the pharmaceutical sector given the increased transparency imposed by measures such as disclosure of relationships with HCPs, clinical trials, etc?

Although this allows pharmaceutical companies to know what their competitors are paying to doctors, no specifics of eventual underlying agreements are disclosed. The type of information to be disclosed concerns solely the amount, the name of the recipient and a brief description of the event that caused the payment (eg, lecture fees, a conference). The transparency measures per se should not affect or increase anticompetitive exchanges of information.

Law stated date

Correct on

Give the date on which the above content is accurate.

24 June 2020.