Portugal: News - Competition Law And Policy 2nd Quarter 2019

Last Updated: 22 August 2019
Article by PLMJ Team

PORTUGAL

I. Portuguese Competition Authority

Portuguese Competition Authority fines the companies Mota-Engil – Engenharia e Construção and Futrifer – Indústrias Ferroviárias, S.A.

On 12 April 2019, the Portuguese Competition Authority (PCA) fined the company Mota-Engil – Engenharia e Construção, S.A and one of its managers a total of EUR 906,000 for allegedly participating in a five-company cartel that acted in public tenders launched by Infraestruturas de Portugal in the railway maintenance sector. This collusion culminated in higher costs for the public entities as the bids were presented above the base-price. According to the PCA, during 2014 and 2015, the companies involved also agreed to share the different lots of a public tender between them.

On 28 June 2019, the company Futrifer – Indústrias Ferroviárias, S.A and one of its board members were also fined a total of EUR 300,000 for the infractions mentioned above.

Issuing a Statement of Objections in September 2018, the PCA concluded the proceedings against these Defendants under settlement procedures in which the latter admitted the facts and accepted their responsibility. This procedural mechanism had already been used in these investigations and made it possible to reach a finding against the company Sacyr Neopul, S.A. and its general production director.

The investigation is still on-going regarding the remaining two undertakings and their board members and managers.

Portuguese Competition Authority carries out dawn raids at healthcare companies

On 10 May 2019, the Portuguese Competition Authority announced that it had carried out dawn raids at nine healthcare companies following suspicions of alleged anticompetitive practices harmful to consumers' freedom of choice.

The PCA ordered that the investigations should be subject to secrecy, but it did announce that the dawn raids were carried out in the Lisbon, Porto and Algarve areas.

Portuguese Competition Authority decides to open an in-depth investigation into the proposed acquisition of the Hospital São Gonçalo de Lagos by the Grupo Hospitalar Particular do Algarve

On 22 May 2019, the Portuguese Competition Authority (PCA) decided to open an in-depth investigation (Phase II) into the acquisition of Hospital São Gonçalo de Lagos (HSGL) by Grupo Hospital Particular do Algarve (HPA Group).

This notification to the PCA was issued on 9 November 2018, following an inquiry by the PCA, even though the merger at stake had already been implemented in late 2017.

In the PCA's view, the HPA Group, a market leader in the provision of medical services in private hospitals in the Algarve region, will strengthen its position with this acquisition. Furthermore, significant impediments to effective competition in the affected markets cannot be ruled out, particularly in terms of the provision of medical services in private hospitals in the Algarve, as well in the provision of medical consultations in the areas of influence of the HSGL.

Portuguese Competition Authority imposes a legally-binding obligation on the association of manufacturers of bread and pastries to abstain from public declarations about commercial conditions

On 6 June 2019, the Portuguese Competition Authority (PCA) adopted a decision to terminate the ongoing proceedings against Northern Association of Manufacturers of Bread, Pastries and Similar Products (AIPAN). The proceedings were terminated in exchange for a commitment from the AIPAN not to provide statements or information concerning prices and other commercial conditions that might promote coordination between the associates. Furthermore, the AIPAN has made a commitment to inform its associates that prices and other commercial conditions are to be autonomously defined by them.

The decision is the final step in the proceedings launched in August 2018 when the PCA identified competitive concerns relating to the statements made by the President of the AIPAN. In the PCA's view, these statements could amount to an interference in the commercial autonomy that is granted to the associates and, for that reason, harming consumers.

At the end of the public consultation on the commitments offered by the AIPAN, the PCA considered that they were sufficient to eliminate the competitive concerns.

EUROPEAN UNION

I. Courts

Court of Justice asserts that a competition authority can apply two fines to the same company for infringement of both national and competition law

On 3 April 2019, the Court of Justice of the European Union (CJEU) found that a competition authority can simultaneously impose two different fines on the same company in the same proceeding for infringing both national and European Union rules, provided that the total fine is proportional to the infraction.

In this case, two fines were applied to the same company - Powszechny Zakład Ubezpieczeń na Życie ("PZU"), a large insurance company that was previously accused of abusing of its dominance from 2001 to 2007.

The Polish Competition Authority applied a fine of PLN 33,022,892.77 (approximately EUR 7,664,000) for violating Polish competition rules between 1 May 2001 and 25 October 2007. Secondly, a fine of PLN 17,358,187.23 (approximately EUR 4,033,000) was imposed for the violation of Article 82 EC (now 102 TFEU) between 1 May of 2004, the date on which Poland joined the European Union, and 25 October 2007.

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