Merger Controls First Edition - J Sagar Associates

Marques Mendes & Associados Portugal
appeals from decisions adopted by the PCA both in sanctioning and in administrative proceedings, such competence,
previously entrusted exclusively with the Lisbon Court of Commerce, shall be granted to the section of commerce (‘juízo
de comércio’) of the territorially competent court, in whose absence the section of commerce of the Court of Lisbon shall
ultimately be the competent one. This new regime, which shall gradually enter into force until 1 September 2014, was
already in force in the three territorial areas indicated in Law No. 52/2008. Under Decree-Law No. 74/2011 of 20 June
2011, as of 1 December 2011 this new regime will also apply notably in Lisbon, the Lisbon Court of Commerce being
turned into the Section of Commerce of the Court of Lisbon as a result.
On the other hand, the long announced creation of a specialised court to deal with competition matters was approved with
Law No. 46/2011 of 24 June 2011, whose coming into effect is now pending the actual establishment of the Court. The
new Court shall also be competent to handle regulation and supervision matters and it is expected to be established in the
town of Santarém (approximately 100km from Lisbon), as previously announced. Upon the establishment of the
specialised Court, all the PCA’s decisions adopted in merger control proceedings and in proceedings initiated regarding
infringements of merger control rules shall be appealed to the new Court.
Finally, the long awaited overhaul of the national competition regime is expected to take place in the short to medium term, in
view of the objectives regarding the Portuguese competition policy set in the Memorandum of Understanding on Specific
Policy Conditionality, agreed upon between the Portuguese Republic and the International Monetary Fund, European Central
Bank and European Commission representatives in the context of the granting of financial assistance to Portugal.
Under the Memorandum, the main objectives of the overhaul of the national competition and sector regulation policies
are notably: (i) to guarantee a level playing field and minimise rent-seeking behaviour, by strengthening competition and
sector regulators; and (ii) to eliminate the State’s special rights in private companies (the so-called “golden shares”). In
more detail, the Memorandum requires that by the end of 2011 the PCA be ensured sufficient and stable financial means
to guarantee its effective and sustained operation, and that the national competition law be revised in order to make it as
autonomous as possible from administrative law and criminal procedural law and more harmonised with the EU
competition policy. This latter goal shall notably involve: (i) further aligning Portuguese and EU law on merger control,
specifically in terms of the criteria making the ex ante notification of a concentration compulsory; and (iii) adjusting the
appeal process where necessary to increase fairness and efficiency.
The proposals regarding the competition and sector regulation policies contained in the programmes of political parties
Partido Social Democrata (PSD) and CDS – Partido Popular (CDS-PP), which entered into a coalition Government on 21
June 2011, are also in line with the Memorandum.
* * *
Endnotes
1 Source: the Merger Database at the PCA’s official website (www.concorrencia.pt). The Merger Database contains
information on all the concentration cases that have been notified and decided by the PCA since its creation in
January 2003, external access to it being allowed since 30 December 2009.
2 PCA’s Decision of 30 March 2010, Case No. Ccent. 41/2009, Ongoing/Vertix/Media Capital.
3 PCA’s Decision of 7 April 2011, Case No. Ccent 44/2010, Essilor/Shamir.
4 See endnote 3.
5 This was notably the case at the 12 March 2008 Commission for Public Budget and Finance’s Hearing of Professor
Abel Mateus, whose term of office as President of the PCA formally ended on 24 March 2008.
6 EDP Produção is part of the EDP Group (the electricity sector incumbent in Portugal), being active in the
generation, purchase, sale, import and export of energy.
7 Greenvouga has been awarded the conception, construction and exploration of the Ribeiradio-Ermida hydroelectric
complex, which was licensed back in 2007 and is expected to be explored from 2014.
8 PCA’s Decision of 13 December 2010, Case No. Ccent 23/2010, EDP Produção/Greenvouga.
9 Bencom is part of the “Grupo Bensaúde” economic group, active in the import, storage and sale of fuel products
and connected activities in Azores islands.
10 BP Group is one of the main fuel players in Portugal.
11 PCA’s Decision of 8 February 2011, Case No. Ccent 40/2010, Bencom/Activos BP.
12 Essilor Portugal is part of the Essilor International group, active in the manufacturing and sale of ophthalmic lenses
and in the manufacturing and sale of optical equipment and consumables.
13 Shamir Portugal is part of the Shamir Optical Industry group, active in the manufacturing, sale and distribution of
ophthalmic lenses.
14 See endnote 3.
15 See endnote 2.
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