Advanced Search

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

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

1

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

2

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.

3

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

4

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

5

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%

6

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

7

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.

8

Seen and approved in Council of Ministers of April 6, 2006

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs