Abuse of dominance is considered a quasi-criminal minor offence. The application of general criminal law can only derive from behaviour also corresponding to a penal offence (fraud, extortion, etc) as there are no criminal sanctions for competition law offences.
In relation to sanctions for quasi-criminal minor offences, fines can be imposed of up to 10 per cent of the corresponding turnover in the year immediately preceding that of the final decision adopted by the Authority for each of the infringing undertakings, or, in the case of associations of undertakings, of the aggregated turnover of the associated undertakings:
- for infringements of article 11 of the Act or article 102 of the TFEU;
- for non-compliance with the conditions attached to the decision of closing the case at the end of the investigation phase;
- for the non-compliance with behavioural or structural remedies imposed by the Authority; or
- for non-compliance with a decision ordering interim measures.
The Authority published Guidelines on the methodology to use in the application of fines, dated 7 August 2012, according to which the Authority takes into account the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates (similarly to the European Commission’s Guidelines on the method of setting fines imposed pursuant to article 23(2)(a) of Regulation No. 1/2003 (2006/C 210/02)), or the total turnover when the calculation of the turnover related to the infringement is impossible to determine.
In the case of any of these infringements being carried out by individuals held responsible under the Act the applicable fine cannot exceed 10 per cent of the corresponding remuneration in the last full year in which the infringement took place.
In addition, the refusal to provide information or the provision of false, inaccurate or incomplete information, or non-cooperation with the Authority are subject to fines of up to 1 per cent of the corresponding turnover in the year immediately preceding that of the final decision adopted by the Authority, for each of the infringing undertakings, or, in the case of associations of undertakings, of the aggregated turnover of the associated undertakings. In the case of any of these infringements being carried out by individuals held responsible under the Act the applicable fine ranges from 10 to 50 units of account (each unit of account at present amounting to €102).
Further, the absence of a complainant, of a witness or of an expert to a duly notified procedural act is punishable with a fine ranging from 2 to 10 units of account.
Additionally, should the infringement be considered sufficiently serious, the Authority can impose, as ancillary sanctions, the publication, at the offender’s expense, of an extract of the sanctioning decision in the Official Gazette and in a Portuguese newspaper with national, regional or local coverage, depending on the relevant geographical market, or, in the case of competition law infringements carried out during, or because of, public procurement proceedings, the prohibition for a maximum of two years from participating in proceedings for entering into public works contracts for concessions of public works or public services for the lease or acquisition of goods or services by the state or for the granting of public licences or authorisations.
The Authority may further impose periodic penalty payments of up to 5 per cent of the average daily turnover in the year immediately preceding that of the final decision, per day of delay, counted from the date established in the notification, where the undertakings do not comply with an Authority decision imposing a sanction or ordering the adoption of certain measures.
Individuals, legal persons (regardless of the regularity of their incorporation), companies and associations without legal personality may be held liable for offences under the Act.
Legal persons and equivalent entities are liable when the acts are carried out on their behalf, on their account by persons holding leading positions (eg, the members of the corporate bodies and representatives of the legal entity), or by individuals acting under the authority of such persons by virtue of the violation of surveillance or control duties. Merger, demerger or transformation of the legal entity does not extinguish its liability.
The members of the board of directors of the legal entities, as well as the individuals responsible for the direction or surveillance of the area of activity in which an infringement is carried out are also liable when holding leading positions they act on behalf or on the account of the legal entity, or knowing or having the obligation to know the infringement they do not adopt the measures required to put an end to it, unless a more serious sanction may be imposed by other legal provision.
Undertakings whose representatives were, at the time of the infringement, members of the directive bodies of an association that is subject to a fine or a periodic penalty payment are jointly and severally responsible for paying the fine, unless they have expressed in writing their opposition to the infringement.
Further, the Authority’s decisions declaring the existence of a restrictive practice may include the admonition or the application of other fines and other sanctions set forth in the Act and, if required, the imposition of behavioural or structural remedies indispensable to put an end to the restrictive practice or to the effects thereof. Structural remedies may only be imposed in the absence of a behavioural remedy that is equally effective, or, if such remedy exists, it is more costly to the concerned undertaking than the structural remedy.
In addition, the Authority may, at any time during the proceedings, order the suspension of a restrictive practice or impose other interim measures required to restore competition, or indispensable to the effectiveness of the final decision to be adopted, if the findings indicate that the practice in question is about to cause serious damage, irreparable or difficult to repair damage. The interim measures may be adopted by the Authority ex officio or upon request by any interested party and shall be effective until they are revoked and for a period of up to 90 days, extendable for equal periods within the time limits of the proceedings. Imposition of interim measures is subject to a prior hearing of the concerned undertaking, except if such a hearing puts at risk the effectiveness of the measures, in which case the concerned undertaking is heard after the measure is adopted. Whenever a market subject to sectoral regulation is concerned, the opinion of the corresponding sectoral regulator shall be requested.
As noted above, the Authority has published Guidelines on the methodology to use in the application of fines. In drafting these guidelines the Authority has taken into account the European Commission’s Guidelines on the method of setting fines imposed pursuant to article 23(2)(a) of Regulation No. 1/2003, also referred to above. While the Authority’s guidelines largely reflect those adopted by the European Commission in respect of the method for the setting of fines, they include, nevertheless, specific provisions resulting from the application of the general regime on quasi-criminal minor offences, which applies, on a subsidiary basis, to the administrative procedure on anticompetitive agreements, decisions and practices (see question 1). For instance, where the economic benefit obtained from the infringement may be established and exceeds the maximum limit of the applicable fine the Authority may impose a fine up to such benefit as long as the applicable fine does not exceed the said maximum limit by more than a third; in the case of several infringements, the applicable fine cannot exceed the double of the higher limit applicable to the infringements at issue; in the case of negligence, the amount of the applicable fine is reduced by half.
The highest fine ever imposed was the one levied on the PT Group and the ZON Group, in which the Authority fined the said groups an aggregate amount of €53.062 million (€45.016 million on the PT Group and €8.046 million on the ZON Group), for abuse of a dominant position between 22 May 2002 and 30 June 2003 in the wholesale and retail broadband access markets. The sanctioned abusive practices included retail margin squeeze, discriminatory conditions regarding equivalent services and limiting production, distribution, technical development and investment in respect of the services concerned. This decision was revoked by the Lisbon Court of Commerce on 4 October 2011, which, on the grounds of the applicable statute of limitations acquitted the defendants.
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