Establishes The Legal Regime Of Exemption And Special Attenuation Of The Fine In A Misdemeanour Proceedings For Infringement Of National Competition Rules

Original Language Title: Estabelece o regime jurídico da dispensa e da atenuação especial da coima em processos de contra-ordenação por infracção às normas nacionais de concorrência

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277624459304c5667755a47396a&fich=ppl64-X.doc&Inline=false

1 PROPOSAL of law No. 64/X explanatory memorandum The horizontal agreements between companies, commonly referred to as "cartels", constitute one of the most serious forms of restriction on competition, being prohibited by Community competition law, pursuant to article 81 of the Treaty establishing the European Community, as the national competition legislation of the various Member States of the European Union. In Portugal, such horizontal agreements between undertakings are prohibited by article 4 of law No. 18/2003, of 11 June, which approves the legal framework on competition. The detection and elimination of this type of agreement, sometimes difficult to identify, it is extremely beneficial for the economy and for consumers, justifying the granting of favourable treatment to undertakings which cooperate with the national competition authority in the investigation, proof and punishment of such agreements. Currently, only 7 of the 25 Member States of the European Union do not have programs for exemption or special mitigation of penalties applicable to infringements of the competition rules, especially when it comes to the investigation of cartels at European level may give rise to practical difficulties. The absence of a national legal framework for exemption or special mitigation of fines applicable in these offences is still likely to distort the application of Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in articles 81 and 82 of the Treaty establishing the European Community. Indeed, that regulation came to establish a new regime of exception, directly applicable, within which the national competition authorities and courts of the Member States of the European Community shall be competent to apply, in your fullness, articles 81 and article 82 of the Treaty establishing the European Community. This cooperation between national competition authorities and the European Commission, which covers the exchange of information and 2 mutual assistance in carrying out procedural steps, is only fully achieved with the establishment of a system ensuring the existence of information on the agreements that affect the rules of competition. The legal framework that can ensure the achievement of the objectives referred to the exemption and the mitigation of the fine applicable in an administrative offence proceedings for breach of competition rules. With the establishment of a legal framework on this matter it is intended to encourage the participants in agreements or concerted practices prohibited by competition law to provide the competition authority information and evidence about the same, granting them exemption or special mitigation of the fine which they would be applicable in accordance with the general criteria. With regard to the objectives set and the legislation, whether national, community compliance with which intended to safeguard, and given the competitive principles that urge to protect, it is important to create the legal framework for exemption or mitigation of fines applicable in an administrative offence proceedings for breach of competition rules within the parameters that the present law. Thus, it is established that the exemption or special mitigation of fines can only be assigned as long as certain conditions are met, in particular related to the additional time of the communication of information and elements to the competition authority and the duty to cooperate with this research of the agreement or practice concerned. Establishes that the exemption is only granted to the first company that withdraws an agreement or concerted practice in respect of which the competition authority has not begun to research and to provide information and evidence to verify the existence of the infringement. In the case of the competition authority have already begun their investigation, it is expected that the legal regime to be established by the Government, allow a special attenuation with the minimum threshold of 50% of the amount of the fine that would be applied. For the second company there is the possibility to be granted a special attenuation up to a maximum of 50% of the amount of the fine that would be applied, since information and evidence still contribute significantly to the research and evidence of the offence, and be provided before the competition authority undertake the notification referred to in point (b)) of paragraph 1 of article 25 and of paragraph 1 of article 26 of law No. 18/2003, of 11 June. 3 under the scheme to be adopted should provide for the competence of the competition authority to evaluate the fulfilment by companies wishing to benefit from exemption or special mitigation of fines, the conditions laid down in this regulation and considering the importance of the contribution of the information and evidence provided.

So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: chapter I General provisions Article 1 subject-matter this law establishes the legal regime of exemption and special mitigation of the fine, granted by the competition authority in accordance with the conditions laid down in that Treaty, in cases of alleged infringement by breach of the legal regime of competition and If applicable, Community competition standards which should be ensured by the competition authority.

Article 2 Scope the objective of the exemption or special mitigation of the fine are granted within the framework of a misdemeanour proceedings relating to agreements and concerted practices between undertakings prohibited by article 4 of law No. 18/2003, of 11 June, and, if applicable, under article 81 of the Treaty establishing the European Community.

Article 3 subjective scope 4 may benefit from exemption or special mitigation of the fine: a) The undertakings within the meaning of article 2 of law No. 18/2003, of 11 June; b) holders of the Board of Directors of legal persons and similar entities, in accordance with the provisions of paragraph 3 of article 47 of law No. 18/2003, of 11 June.

Chapter II Requirements article 4 Waiver


1-the competition authority may grant exemption from the fine that would be applied in accordance with the provisions of subparagraph (a)) of paragraph 1 of article 43 and article 44 of law No. 18/2003, of 11 June, the company to do, cumulatively, the following conditions: a) is the first to provide the competition authority information and evidence about an agreement or concerted practice to verify the existence of a breach of the standards referred to in Article 2, for which the competition authority has not yet granted to the opening of an investigation in accordance with the provisions of paragraph 1 of article 24 of law No. 18/2003, of 11 June; b) Cooperate fully and continuously with the competition authority from the moment of submission of the application for exemption or special mitigation of the fine, the company obliged, namely: (i)) Provide all the evidence that has or will have in your possession; II) Respond promptly to any request for information which can contribute to the determination of the facts; III) refrain from acts that could impede the course of the investigation; IV) did not inform the other companies participating in the agreement or concerted practice from your application for exemption or special mitigation of the fine. c) put an end to your participation in the infringement no later than the time 5:00 pm to provide the competition authority the information and evidence referred to in point (a)); (d)) has not exercised any coercion on other companies in order to participate in the infringement. 2-The information and evidence referred to in subparagraph (a)) of the preceding paragraph, shall contain complete and accurate statements about the companies involved in the infringement, the product or service in question, the nature of the infringement, your geographical scope, duration and your way was executed.

Article 5 special Mitigation of the fine from 50% 1-the competition authority may grant a special mitigation of at least 50% of the amount of the fine to be imposed pursuant to subparagraph (a)) of paragraph 1 of article 43 and article 44 of law No. 18/2003, of 11 June, if you have already made the opening of investigation in accordance with paragraph 1 of article 24 of law No. 18/2003 , of 11 June, the company to do, cumulatively, the following conditions: a) is the first to provide the competition authority information and evidence about an agreement or concerted practice in research by the competition authority, which has not yet been made the notification referred to in point (b)) of paragraph 1 of article 25 and paragraph 1 of article 26 of that decree-law; b) the information and evidence provided will contribute so crucial to the investigation and proof of the offence; c) Are checked the conditions laid down in paragraph 1 (b)) d) of paragraph 1 of the preceding article. 2-for the purposes of determining the amount of the reduction, the competition authority takes into consideration the importance of the company's contribution to the investigation and proof of the infringement.

Article 6 special Mitigation of the fine until 50% 6 1-the competition authority may grant a special attenuation up to 50% of the amount of the fine to be imposed pursuant to subparagraph (a)) of paragraph 1 of article 43 and article 44 of law No. 18/2003, of 11 June, the company to do, cumulatively, the following conditions : a) is the second to provide the competition authority information and evidence about an agreement or concerted practice in research by the competition authority, which has not yet been made the notification referred to in point (b)) of paragraph 1 of article 25 and paragraph 1 of article 26 of that decree-law; b) the information and evidence provided will contribute significantly to the research and evidence of the offence; c) Are checked the conditions laid down in paragraph 1 (b)) d) of paragraph 1 of article 4 2-in determining the amount of the reduction, the competition authority takes into consideration the importance of the company's contribution to the investigation and proof of the infringement.

Article 7 additional Attenuation of fine the competition authority may grant a special or additional attenuation attenuation of the fine that would be applied in a case of alleged infringement concerning an agreement or concerted practice, if the company is the first to provide information and evidence in accordance with the provisions laid down in point (a)) of paragraph 1 of article 4 or the provisions of a) and b) of paragraph 1 of article 5 for another agreement or concerted practice in respect of which that company also submits application for exemption or special mitigation of fines.

Article 8 Holders of administrative 1 – recipients of the administrative body can benefit, in respect of the fine which they would be applied in accordance with the provisions of paragraph 3 of article 47 of law No. 18/2003, of 11 June, the exemption or special mitigation granted to 7 its legal person or entity equivalent, if you cooperate fully and continuously with the competition authority in terms of paragraph b) of paragraph 1 of article 4-2 The holders of the administrative responsibility in accordance with the provisions of paragraph 3 of article 47 of law No. 18/2003, of 11 June, which have individual request shall apply, mutatis mutandis, the provisions of articles 4 to 7 Chapter III procedure and article 9 decision procedure the administrative procedure concerning the processing required for obtaining exemption or special mitigation of the fine is established by regulation to be approved by the competition authority in accordance with the provisions laid down in point (a)) of paragraph 4 of article 7 of its Statute, approved by Decree-Law No. 10/2003, of 18 January, and according to the provisions of article 21 of law No. 18/2003, of 11 June.

Article 10 decision on the application for exemption or special mitigation of the fine


1-the decision on the application for exemption or special mitigation of the fine is taken in the decision of the competition authority referred to in point (c)) of paragraph 1 of article 28 of law No. 18/2003, of 11 June. 2-the exemption or special mitigation of fines levied on the amount of the fine that would be applied in accordance with subparagraph (a)) of paragraph 1 of article 43 and article 44 of law No. 18/2003, of 11 June. 3-in determining the fine that would have been applied is not taken into account the criteria referred to in point (e) article 44 of) Law No. 18/2003, of 11 June. 4-the use of part of the Competition Authority's decision concerning the exemption or special mitigation of the fine has merely devolutive effect. 8 Seen and approved by the Council of Ministers of 6 April 2006 Prime Minister the Minister of Parliamentary Affairs Minister Presidency