The new Competition Authority president recently completed her first full year in office with impressive results. Since November 2016 the authority has adopted six infringement procedure decisions, one commitment decision and two fining decisions. Further, the transposition of the EU Directive on Antitrust Damages Actions into national law appears to be close to completion. As a result, it seems likely that 2018 will start with the approval of a new legal framework for the private enforcement of competition law.
The government recently approved a decree-law which establishes the legal framework for medium, high and low-voltage private service electrical facilities powered by the public service electric network and temporary and itinerant self-generation facilities. The law will enter into force on January 1 2018 and revoke the Electrical Facilities Licensing Regulation, as amended, but only with regard to the provisions applicable to private service electrical facilities covered by the new framework.
The Competition Authority recently ended an investigation into the exchange of prospective prices between pork meat producers, meat processors and slaughter houses with no finding of anti-competitive practice. This is the first Competition Authority decision to validate an information exchange scheme involving (but not limited to) competitors. As such, more straightforward guidance from the authority on how this case differs from prior cases and justifies such a benign approach would have been welcomed.
To date, 2017 has been a busy year for the Competition Authority. During the first half of the year, the Competition Authority made 36 dawn raids on companies operating in several economic sectors. Although no details of the dawn raids have been released, the authority has clarified that it gathered evidence concerning cartel activities and other practices concerning the offering of goods and services with a direct impact on the final consumer.
In a significant defeat for the Competition Authority, the Lisbon Court of Appeal has partially reversed a first-instance judgment and repealed the main fine imposed in a margin squeeze case which involved pharmacies' sales data for prescription medication and consumer health products. The decision re-emphasises the autonomy, for antitrust liability purposes, of separate legal parties in the same economic group.
The special and extraordinary legal regime for the construction and operation by municipalities, inter-municipal associations and municipal associations of biomass plants for specific purposes was recently approved by way of a decree-law. However, the regime has not been fully implemented, as the government must decide on the terms of the licensing procedures and the remuneration of energy generated by biomass plants licensed under the new regime.
Decree-Law 38/2017 recently created the Logistics Operator for Switching Electricity and Gas Supplier (OLMC), which will be responsible for ensuring that consumers can switch their electricity and natural gas suppliers in a swift and simple manner using transparent, non-discriminatory, standard and digital procedures. The OLMC will also enable consumers to access information concerning applicable energy tariffs and prices and their rights and obligations in the switching process.
The Fighting Bid Rigging in Public Procurement campaign is a highlight of the Competition Authority's recent advocacy initiatives. The campaign is intended to raise awareness among the state bodies that regularly award public contracts of the most common issues concerning bid rigging in public procurement. It also advises on how to detect illegal practices in the context of public tenders and design tender programmes in a way that inhibits potential collusive tendering.
In Portugal, the most contentious energy projects are those that have or may have a social and environmental impact and which involve the construction of large-scale energy infrastructure. Although uncommon, opposition may arise when environmental impact statements are challenged by environmental organisations and local communities and where local communities advocate that the project should be subject to such an assessment.
The Competition Authority recently concluded its antitrust inquiry into an agreement between pharmaceutical companies Teva and AstraZeneca, under which Teva had agreed to withdraw a generic medicine from the Portuguese market. The inquiry's findings are the first to combine competition and IP law in the context of a patent settlement between originator and generic pharmaceutical undertakings.
A recent Guimaraes Court of Appeal case examined the legality of an employer's decision to withdraw two public holidays from its employees. The court held that the granting of the public holidays to employees amounted to a binding employment practice, as it was general in character, fixed and constant. As a result, the court decided that the employer could not make a unilateral change to the practice that, because of its classification as a custom, had become binding.
A recent Supreme Court of Justice decision examined whether the payment due for the termination of an employment contract as a result of a collective dismissal following an employer's declaration of insolvency was a debt of the insolvent estate or the insolvent company. The court decided that the compensation awarded to the employee in the case at hand was a debt of the insolvent company and not the insolvent estate.
Recent changes to employment law have removed the obligation on unemployed people to present themselves at an employment exchange every two weeks in order to maintain their unemployment benefits. The changes have also introduced a system of personalised employment support, which involves integrated support for the recipients of unemployment benefits.
A recent ministerial order has approved the reimbursement of public funds granted to generation facilities included in the special regime (generally, renewable energy promoters) which are receiving or have cumulatively received guaranteed remuneration (ie, feed-in tariffs) from the last resort supplier of the national electricity system. This measure aims to reduce the tariff deficit and future costs, with the ultimate goal of ensuring the sustainability of the national electricity system.
The Court of Competition, Regulation and Supervision recently upheld a Competition Authority decision regarding an infringement of competition rules through the abuse of a dominant position as a result of a margin squeeze. This case constitutes an important result for the Competition Authority, which has been trying to consolidate its decisional practice in the antitrust field by developing improved response times and delivering more detailed investigations and solid decisions.
Following changes to the Competition Act, judicial challenges to Competition Authority decisions have non-suspensive effect. However, given the often punitive magnitude of fines imposed under the Competition Act, these changes have been criticised for infringing fundamental rights guaranteed under the Constitution. The Constitutional Tribunal recently gave its opinion on this issue for the first time.
The Competition Authority recently published its report for 2015, in which it details its activities, main achievements and relevant metrics. According to the report, 2015 was a busy and successful year for the authority in the context of antitrust and merger control. Further, the authority's response time and practice have improved, which is a clear indicator that it is becoming a more effective supervisory body.
A recent Supreme Court of Justice decision evaluated the lawfulness of a dismissal resulting from an irregularity in the employee disciplinary proceedings due to a violation of the adversarial principle and the right to a defence in disciplinary proceedings. The court found that the person handling the proceedings had not presented her case regarding a request to provide evidence and declared the proceedings to be invalid.
The Competition Authority recently issued a preliminary facts assessment regarding its investigation into whether the Association of Portuguese Psychologists' code of ethics breaches competition law. In order to address the authority's concerns, the association has proposed certain commitments that, if accepted, will allow the case to be closed without any finding of infringement.
Law 28/2016 recently introduced amendments to the Employment Code regarding the rules promoting health and safety at work and the operation and licensing of private placement and temporary employment agencies. Among other things, the changes increase the responsibility of employers in relation to temporary employment and the occasional provision of workers.