Key Benefits:
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PROPOSED LAW NO. 64 /X
Exhibition of Motives
The horizontal agreements between companies, comummind designated "cartels",
constitute one of the most serious forms of restriction on competition, being prohibited
both by the Community Competition Law, pursuant to Article 81 of the Treaty
establishing the European Community, as by the national competition law
of the different member states of the European Union.
In Portugal, the aforementioned horizontal agreements between companies are interned by the
Article 4 of Law No. 18/2003 of June 11 approving the legal regime of the
competition.
The detection and elimination of this type of agreements, sometimes difficult to identify, is
extremely beneficial to the economy and to consumers, justifying the
provision of a favourable treatment for companies cooperating with the authority
national competition in the research, evidence and sanction of such agreements.
At present, only 7 of the 25 member states of the European Union have no
special dispensation or mitigation programmes of the penalties for infringements
to the rules of the competition, situation which, above all, when it is in question
research of cartels at the European level, can raise practical difficulties.
The non-existence of a national legal regime of dispensation or special mitigation of the
fines applicable in these offences is still likely to cause distortions to the
Implementation of Council Regulation (EC) No 1/2003 of December 16
2002, relating to the implementation of the rules of competition provided for in Articles 81 and 82.
of the Treaty establishing the European Community.
In effect, that regulation came to establish a new regime of exception,
directly applicable, within which the national competition authorities and
the courts of the member states of the European Community shall become
competent to apply, in their fullness, Articles 81 and Article 82 of the Treaty
establishing the European Community. This cooperation between the national authorities
of competition and the European Commission, to which it covers the exchange of
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information and mutual assistance in the realization of procedural representations, is only
fully achieved with the establishment of a regime that guarantees the
existence of information on the agreements that affect the rules of competition.
The legal regime that can guarantee the pursuit of the mentioned objectives is the
of the dispensation and the attenuation of the applicable fine in counterordinance processes by
infringement of the standards of competition.
With the establishment of a legal framework on the present matter is intended to
encourage participants in agreements or concerted practices prohibited by the
competition law to provide the Competition Authority with information and
elements of proof about the same, granting them dispensation or mitigation
special of the fine that would be applicable to them in accordance with the general criteria.
In the face of the objectives described and the legislation, whether national, or community, whose
fulfillment if it intends to safeguard, and further answering to the principles
competitive that it urges to protect, it matters to create the legal regime of dispensation or
mitigation of the fine applicable in counterordinance proceedings by infringement of the
standards of competition within the parameters that this Act sets out.
Thus, it is established that the dispensation or special cofine quenching can only be
assigned as long as certain additional conditions are fulfilled,
particularly related to the timing of the communication of the information and
elements to the Competition Authority and the duty of cooperation with this in
investigation of the agreement or practice in question.
It is further established that the dispensation is only granted to the first company that
denounce a concerted agreement or practice regarding which the Authority of
Competition has not initiated the investigation and provides information and
evidence to be able to verify the existence of the offence.
In the event that the Competition Authority has already started the respective research,
it is expected that the legal regime to be fixed by the Government, will allow for special mitigation
with the minimum limit of 50% of the amount of the fine that would be applied.
For the second company subsists the possibility of it being granted a mitigation
special up to the maximum limit of 50% of the amount of the fine that would be applied,
provided that information and evidence still contribute in a significant way
for the investigation and proof of the infringement, and are provided before the Authority of the
Competition proceeding with the notification referred to in point b) of Article 25 (1)
and of Article 26 (1) of Law No 18/2003 of June 11.
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Within the framework of the scheme to be approved shall provide for the competence of the Authority of the
Competition to affirm compliance by companies intending to benefit from
dispensation or special attenuation of fine, of the conditions set out in the present
diploma and to ponder the importance of the input of the information and elements of
proof provided.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents
to the Assembly of the Republic the following proposed law:
CHAPTER I
General provisions
Article 1.
Subject
This Law establishes the legal regime of the dispensation and special mitigation of the
coima, granted by the Competition Authority under the conditions laid down in it, in
counterordinance proceedings for infringement of the legal regime of competition and, if
applicable, to the Community Competition Standards whose respect must be ensured
by the Competition Authority.
Article 2.
Scope of purpose
Special dispensation or mitigation of the fine is granted in the framework of proceedings
of counter-ordinance that have for the purpose of agreements and concerted practices between
companies, prohibited by Article 4 of Law No 18/2003 of June 11, and, if
applicable, by Article 81 of the Treaty establishing the European Community.
Article 3.
Subjective scope
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They may benefit from dispensation or special attenuation of the fine:
a) Companies within the meaning of Article 2 of Law No 18/2003 of June 11;
b) The holders of the body of directors of legal persons and entities
equated, responsible pursuant to the provisions of Article 47 (3) of the
Law No. 18/2003 of June 11.
Chapter II
Requirements
Article 4.
Dispensation
1-A Competition Authority may grant dispensation of the fine that would be
applied in accordance with the provisions of the paragraph a) of Article 43 (1) and in the article
44. of Law No. 18/2003 of June 11 to the company that complies,
cumulatively, the following conditions:
a) Be the first to provide the Competition Authority with information and
proof elements about a concerted agreement or practice allowing
check the existence of an infringement of the standards referred to in Article 2,
for which the Competition Authority has not yet
proceeded at the opening of an inquiry pursuant to the provisions of paragraph 1 of the
article 24 of Law No 18/2003 of June 11;
b) Coopere fully and continuously with the Competition Authority since the
moment of the submission of the application for dispensation or special mitigation of the
coima, being the company obliged, in particular to:
i) Provide all the evidence you have or come to have in your
possession;
ii) Respond promptly to any request for information that may
contribute to the determination of the facts;
iii) Refrain from the practice of acts that may hamper the course of the
research;
iv) Do not inform the other participating companies in the agreement or practice
concerted from your request for dispensation or special attenuation of the fine.
c) Put an end to your participation in the offence at the latest to the moment
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where to provide the Competition Authority with the information and the
proofing elements referred to in point a) ;
d) Has not exercised any coaction on the other companies in the sense
of these to participate in the offence.
2-The information and evidence, referred to in para. a) of the previous number,
must contain complete and precise indications about the companies involved in the
infringement, the product or service in question, the nature of the offence, its scope
geographical, its duration and the form by which it was performed.
Article 5.
Special attenuation of the fine from 50%
1-A Competition Authority may grant a special mitigation of, by
less, 50% of the fine amount that would be applied in the terms of the provisions of the
point ( a) of Article 43 (1) and in Article 44 of Law No. 18/2003 of 11 of
June, if it has already proceeded at the opening of inquiry under the terms of paragraph 1 of the
Article 24 of Law No 18/2003 of June 11 to the company that complies,
cumulatively, the following conditions:
a) Be the first to provide the Competition Authority with information and
elements of proof about a concerted agreement or practice in research
by the Competition Authority, regarding which it has not yet
been made of the notification referred to in point (a) b) of the Article 1 (1)
25. and Article 26 (1) of that diploma;
b) The information and the evidence provided contribute in a way
determinant for the investigation and proof of the infringement;
c) The conditions laid down in the paragraphs are verified b) a d) of paragraph 1 of the
previous article.
2-In the determination of the amount of the reduction, the Competition Authority has in
consideration of the importance of the company's contribution to research and evidence
of the offence.
Article 6.
Special attenuation of the fine up to 50%
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1-A Competition Authority may grant special mitigation up to 50%
of the amount of the fine that would be applied under the provisions of the paragraph a) from the
n Article 43 (1) and Article 44 of the Law No 18/2003 of June 11 to the Company
that fulfils, cumulatively, the following conditions:
a) Be the second to provide the Competition Authority with information and
elements of proof about a concerted agreement or practice in research
by the Competition Authority, regarding which it has not yet
been made of the notification referred to in point (a) b) of the Article 1 (1)
25. and Article 26 (1) of that diploma;
b) The information and the evidence provided contribute in a way
significant for the investigation and proof of the infringement;
(c) are verified the conditions laid down in points b) a d) of paragraph 1 of the
article 4 para.
2-In the determination of the amount of the reduction, the Competition Authority has in
consideration of the importance of the company's contribution to research and evidence
of the offence.
Article 7.
Additional cofine mitigation
The Competition Authority may grant special mitigation or a
additional attenuation of the fine that would be applied to it in the framework of a process of
counterordinance relating to a concerted agreement or practice, if the company is a
first to provide information and evidence, in the terms of the provisions of the
point ( a) of Article 4 (1) or of the provisions of paragraph 1 a) and b) of Article 5 (1),
referring to another agreement or concerted practice concerning which that
company also present request for dispensation or special cofine quenching.
Article 8.
Holders of the administration bodies
1-The holders of the administration body may benefit, regarding the fine
that would be applied to them under the provisions of Article 47 (3) of the Law n.
18/2003, of June 11, of the special dispensation or mitigation granted to the
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respective legal person or equiped entity, if they cooperate fully and
continuously with the Competition Authority in the terms of the provisions of
point ( b) of Article 4 (1)
2-To the holders of the administration bodies, responsible under the provisions of the
in Article 47 (3) of the Law No 18/2003 of June 11, which they submit application
the individual title is applicable, with due adaptations, the provisions of the articles
4. to 7.
Chapter III
Procedure and decision
Article 9.
Procedure
The administrative procedure relating to the springboard necessary for the obtaining of
dispensation or special mitigation of the fine is established by regulation to be approved
by the Competition Authority, pursuant to the provisions of the a) of paragraph 4 of the
article 7 of the respective Statutes, approved by the Decree-Law No. 10/2003, of 18
of January, and in accordance with that provided for in Article 21 of Law No. 18/2003, of 11 of
June.
Article 10.
Decision on the application for dispensation or special mitigation of the fine
1-A Decision on the application for dispensation or special attenuation of the fine is taken
in the decision of the Competition Authority referred to in point (s) c) of paragraph 1 of the
Article 28 of Law No 18/2003 of June 11.
2-A The special fine dispensation or attenuation focuses on the amount of the fine that
would be applied under the terms of the ( a) of Article 43 (1) and Article 44 of the
Law No. 18/2003 of June 11.
3-In the determination of the fine that would be applied is not taken into account the
criterion provided for in ( e) of Article 44 of Law No 18/2003 of June 11.
4-The appeal of the part of the decision of the Competition Authority concerning the dispensation
or special attenuation of the fine has merely devolutive effect.
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Seen and approved in Council of Ministers of April 6, 2006
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs