Key Benefits:
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PROPOSED LAW NO. 45 /XII
Exhibition of Motives
Being objective of the Government, in compliance with your Program perfecting the system
portuguese normative in all domains that may affect the competition, has taken the
initiative to draw up the present proposal for a new Promotion and Defence Act of the
Competition, which will also meet the meeting of the commitments made
by Portugal in the framework of the Economic and Financial Assistance Program.
This complete reformulation of the Legal Competition Scheme is, therefore,
timely, necessary and adequate for four reasons: First of all because it is part of the
program of the present Government, second, because it aims to comply with constant measures of the
Economic and Financial Assistance Programme (PAEF), in third place, because
responds to the developments however verified in European Union law and jurisprudence
in matters of promotion and defence of competition and, finally, because it reflects the
experience and the balance sheet of activity developed in the field of defence and promotion of
competition, on the part of the Competition Authority and the Courts of Appeal
competent.
In the case of the commitments made by Portugal within the framework of the Programme of
Financial Assistance, the present proposal addresses the defined objectives, strengthen the
efficiency and application of the rules of the competition, according to the following 5 lines of
guidance.
First, simplify the law and introduce greater autonomy of the rules on the
application of competition procedures in relation to the rules of procedures
penal and administrative.
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The second guiding principle focuses on the rationalization of the conditions that determine
the opening of investigations, allowing the Competition Authority to assess the relevance
of the complaints received and, to introduce priorities in their performance.
Third, it seeks to harmonise more Portuguese legislation on the regulation
of the European Union on merger control of companies.
The fourth principle, promotes the guarantee of greater clarity and legal certainty in the application
of the Code of the Administrative Procedure to the control of concentrations.
And lastly, the present Proposal for Law seeks to increase equity, speed and
efficiency of the judicial remedy procedures of decisions of the Authority of the
Competition.
However, the changes introduced go beyond the objectives set out in the Programme of
Economic and Financial Assistance, safeguarding the specificities of the economy
portuguese, as well as the major misses of the sanctionatory legal apparatus
applicable, namely, the General Regime of the Against Ordinances.
The structure of the law now proposed does correspond to distinct chapters, the different areas
of acting from the Competition Authority-restrictive practices of competition; operations
of concentration of undertakings; studies, inspections and audits; public aid; and
regulation.
Within each of the chapters corresponding to the two main areas of acting of the
Competition Authority (restrictive practices of competition and operations of
concentration of companies), the standards applicable to substantive issues are met,
soon followed by their proceduran framework.
It thus gives fulfillment to the goal of greater procedural autonomy, and it ensures a
increasing efficiency and effectiveness in the application of the Act.
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It is worth noting, in particular, following the elements: recognition of the principle
of prioritisation, complemented with a new article on treatment of
complaints; the deadlines for procedures in the context of restrictive competition practices
aligned with the equivalent timelines provided for the process at the Commission level
European; the introduction of procedural mechanisms similar to those of the European Commission;
the test of appreciation of concentration operations; the sanctions for violation of the Articles
101. and 102 of the Treaty on the Functioning of the European Union, which were not
provided for in Law No. 18/2003; and the inclusion in the Act, of the applicable leniency regime only
to the most serious infractions of competition standards, in complete tuning with the praxis of
European Commission (Chapter VIII).
In short, the Government understands that this diploma proposal responds to the needs of the
Portuguese economy, which clearly needs a Competition Policy that is,
itself, inductive of the competitiveness of companies and the confidence of the various agents
economic. In reality, this legislative proposal vializes a policy of competition
that disseminates more competitive markets and thus contributes to growth
economic, increasing employment, strengthening the competitiveness of companies, and the
confidence of citizens in general and consumers.
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 proposal for a law:
Article 1.
Object
This Law approves the New Legal Regime of Competition by repealing the Act
n ° 18/2003 of June 11 and the Law No. 39/2006 of August 25.
Article 2.
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Approval of the New Legal Competition Regime
It is approved in annex to this Act, of which it is an integral part, the New Legal Regime
of the Competition.
Article 3.
Amendment to Law No. 2/99 of January 13
Article 4 of Law No 2/99 of January 13, passes the following essay:
" Article 4.
[...]
1-[...].
2-[...].
3-[...].
4-The decisions of the Competition Authority relating to operations of
concentration of companies in which they participate in entities referred to in the
previous number are subject to prior opinion of the Regulatory Entity
for Social Communication, which should be negative when it is
demonstrably in cause the free expression and confrontation of the diverse
currents of opinion, being in this case binding on the Authority of the
Competition. "
Article 4.
Legislative developments
1-The provisions of the New Legal Regime of Competition, approved in annex to the
present law, must be reviewed in accordance with the evolution of the Legal Regime of the
Competition from the European Union.
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2-A Competition Authority is heard in advance of the adoption of measures
legislative amendments to amend the provisions of the New Legal Competition Scheme,
approved in annex to this Law, or the attributions and powers that are
conferred for promotion and advocacy of competition.
Article 5.
Legal references
The references to Law No. 18/2003 of June 11 and to Law No. 39/2006 of August 25,
consider themselves to be made to the corresponding standards of the New Legal Regime of the
Competition, approved in annex to this Law.
Article 6.
Transitional provisions
1-Until the installation of the Court of Competition, Regulation and Supervision, the standards of
competence provided for in Law No 18/2003 of June 11 shall apply to the appeal of
decisions rendered by the Competition Authority referred to in Articles 83, 84,
85. and 91 of the New Legal Regime of Competition, approved in attachment to the present
law, as well as the ministerial decision referred to in Article 91 of the same Regime.
2-Until the installation of the Court of Competition, Regulation and Supervision, the standards of
competence provided for in Law No 18/2003 of June 11 shall apply to the appeal of
decisions referred to in Articles 88 and 92 of the New Legal System of Competition,
approved in annex to this Law.
Article 7.
Abrogation standard
1-Without prejudice to the provisions of the preceding Article, the Act No 18/2003 of 11 of
June, amended by Decree-Law No. 219/2006 of November 2 by the Decree-Law
n. 18/2008 of January 29 and by the Laws 52/2008 of August 28 and 46/2011, of
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June 24, which sets out the Legal Competition Regime.
2-It is repealed Law No. 39/2006 of August 25 laying down the legal regime of the
dispensation and the special attenuation of the fine in counterordinating processes by
infraction to national competition standards.
Article 8.
Application of the law in time
1-The New Legal Regime of Competition, which is approved in annex to this Act applies:
a) To the counterordinance processes whose enquiry is open after entry into
vigour of this diploma;
b) To the operations of concentration which are notified to the Authority of the
Competition after the entry into force of this diploma;
c) To the studies, inspections and audits whose achievement is deliberated by the
Authority of Competition after the entry into force of this degree;
d) To applications submitted to the Competition Authority after entry into
vigour of this diploma.
2-The Competition Authority's Regulation No 214/2006 published in the 2 th series of the
Journal of the Republic , No 225, November 22, 2006, remains in force, with the
necessary adaptations, until a new regulation on the subject matter is published,
pursuant to the provisions of Article 65 of the New Legal System of Competition,
approved in annex to this Law.
Article 9.
Entry into force
This Law shall come into force 45 days after its publication.
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Seen and approved in Council of Ministers of January 26, 2012
The Prime Minister
The Deputy Minister and Parliamentary Affairs
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Attachment
(referred to in Article 2)
NEW LEGAL REGIME OF COMPETITION
CHAPTER I
Promotion and defence of competition
Article 1.
Object
This Law establishes the legal regime of the competition.
Article 2.
Scope of application
1-A This Law shall apply to all economic activities exerted, with character
permanent or occasional, in the private, public and co-operative sectors.
2-Subject to the international obligations of the Portuguese State, the present law is
applicable to the promotion and defence of competition, in particular to restrictive practices and
to the operations of concentration of companies taking place on national territory or that
in this have or may have effects.
Article 3.
Notion of company
1-It is considered company, for the purposes of this Law, any entity that exercises a
economic activity that consents to the supply of goods or services in a particular
market, regardless of its legal status and its way of
funding.
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2-It is considered to be a single company the set of companies that, although
legally distinct, constitute an economic unit or keep among themselves ties
of interdependence arising in particular:
a) From a majority stake in the capital;
b) From the detention of more than half of the votes awarded by the detention of
social participations;
c) From the possibility of designating more than half of the members of the organ of
administration or surveillance;
d) From the power to manage business respects.
Article 4.
Services of general economic interest
1-Public companies, business public entities and companies to which the
State has granted special or exclusive rights are covered by the
present law, without prejudice to the provisions of the following number.
2-Companies entrusted by law of the management of services of general economic interest or
that have the nature of legal monopoly shall be subject to the provisions of the present
diploma, to the extent that the application of these rules does not constitute an obstacle to the
compliance, in law or in fact, of the particular mission entrusted to them.
Article 5.
Authority of Competition
1-The respect for the rules for promotion and defence of competition is ensured by the
Competition Authority, which, to the effect, has the sanctionatory powers, of
supervision and regulation set out in this Law and in its statutes.
2-The sectoral regulatory authorities and the Competition Authority cooperate between
si in the application of the competition law, under the terms provided for in the law.
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3-With a view to facilitating the application of this Law, the Competition Authority may
celebrate cooperation protocols with the sectoral regulatory authorities.
4-Until April 30 of each year, and with reference to the last day of the previous year, the
Competition Authority prepares and sends the Government, which refers it to the Assembly of the
Republic, the report on the activities and exercise of the powers and competences of the
Authority of Competition, in particular with regard to its powers
sanctionaries, supervision and regulation, with the balance sheet and annual accounts of
management, after discussed and appreciated by the Board of the Authority of the
Competition and with the opinion of the Single Fiscal.
5-In the lack of dispatch of the Government members responsible for the areas of the Economy
and of the Finance, the report, the balance sheet and the accounts consider themselves to be approved decorated
90 days after the date of your receipt.
6-A The publication of the report, balance sheet and accounts is made in the Journal of the Republic on the deadline of 30
days after its approval and on the Electrophic page of the Competition Authority.
Article 6.
Priorities in the exercise of your mission
1-In the performance of its legal assignments, the Competition Authority is
guided by the criterion of the public interest of promotion and defence of competition,
may, on the basis of this criterion, assign different priority degrees in the treatment
of the issues that it is called to be analyzing.
2-A The Competition Authority exercises its sanctionatory powers whenever the
reasons of public interest in the pursuit and punishment of violations of defense norms
of the competition determine the opening of the counterordinance process in the case
concrete, taking into account, in particular, the priorities of the competition policy and the
elements of fact and law that are presented to it, as well as the gravity of the
possible infringement, the probability of being able to prove their existence and the extent of the
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investigative steps necessary to perform, in the best conditions, the
monitoring mission of respect for Articles 8, 10 and 11 of this Law and by the
articles 101 and 102 of the Treaty on the Functioning of the European Union.
3-During the last quarter of each year, the Competition Authority publites in the
its electro-page the priorities of the competition policy for the following year,
without any sectoral reference with regard to the exercise of its powers
sanctionaries.
Article 7.
Processing of complaints
1-A Competition Authority carries out the registration of all the complaints which it
are transmitted, proceeding to the opening of the process of counterordinance or
supervision if the elements referred to in the complaint so determine, in the terms of the
previous article.
2-Where the Competition Authority considers, on the basis of the information of
which provides, that there are no bastant grounds to follow up on us
terms of the previous article, it shall inform the complainant of the denunciation of the respective reasons and
set a deadline, not less than 10 working days, for this to present, in writing,
his observations.
3-A Competition Authority is not obliged to take any account of any
other written submissions received after the expiry of the period referred to in the number
previous.
4-If the author of the complaint submits his / her observations within the time limit established
by the Competition Authority, and these do not lead to a change in the
assessment of the same, the Competition Authority declares the complaint without
grounds valid or not deserving of priority treatment, upon decision
express, of which it is up to appeal to the Court of Competition, Regulation and
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Supervision.
5-If the complainant does not submit his or her observations within the prescribed time
by the Competition Authority, the complaint is filed.
6-A Competition Authority proceeds to the filing of the complaints which do not
give rise to the process.
CHAPTER II
Restrictive practices of competition
SECTION I
Types of restrictive practices
Article 8.
Agreements, concerted practices and decisions of associations of companies
1-Agreements between companies, concerted practices between companies and the
decisions of associations of companies, which have per object or as an effect to prevent,
distort or constrict in a sensitive manner the competition in whole or in part of the market
national, particularly those consisting of:
a) Set, in a direct or indirect way, the prices of purchase or sale, or
any other conditions of transaction;
b) Limit or control production, distribution, technical development or
the investments;
c) Redepart the markets or sources of supply;
d) Apply, relatively to trading partners, unequal conditions in the case of
equivalent benefits, by placing them, by that fact, at a disadvantage in the
competition;
e) Subordinate the conclusion of contracts to acceptance, by the others
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countermeasures, of supplementary benefits which, by their nature or in agreement
with commercial uses, have no connection to the object of these contracts.
2-Except in cases where they are deemed to be justified, in the terms of the following article, they are
nulls the agreements between undertakings and the decisions of associations of prohibited undertakings
by the previous number.
Article 9.
Justification of agreements, concerted practices and
decisions of company associations
1-There can be considered as justified the agreements between companies, the concerted practices
between companies and the decisions of associations of companies referred to in the previous article
that contribute to improving the production or distribution of goods or services or
to promote technical or economic development since, cumulatively:
a) They reserve the users of these goods or services a fair share of the
benefit from it resulting;
b) Do not impose on the companies concerned any restrictions that are not
indispensable to achieve these goals;
c) Do not give these companies the possibility of eliminating competition in a
substantial part of the market for the goods or services in question.
2-Compete to companies or associations of companies that invoicate the benefit of the
justification to make the proof of filling the conditions laid down in the number
previous.
3-Are deemed to be justified the agreements between companies, the concerted practices between
companies and the decisions of associations of companies prohibited by the previous article that,
although it does not affect trade between the Member States, they fill the remaining
requirements for the application of a regulation adopted pursuant to the provisions of paragraph 3 of the
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article 101 of the Treaty on the Functioning of the European Union.
4-A Competition Authority may withdraw the benefit referred to in the preceding paragraph if
check that, in a given case, a covered practice produces effects
incompatible with the provisions of paragraph 1.
Article 10.
Abuse of a dominant position
1-An abusive exploitation, by one or more undertakings, of a position is prohibited
dominant in the national market or in a substantial part of this.
2-Can be considered abusive, namely:
a) Impose, in a direct or indirect way, purchase or other selling prices or other
non-equitable transaction conditions;
b) Limiting production, distribution or technical development at injury
of consumers;
c) Apply, relatively to trading partners, unequal conditions in the case of
equivalent benefits, by placing them, by that fact, at a disadvantage in the
competition;
d) Subordinate the conclusion of contracts to acceptance, by the others
countermeasures, of supplementary benefits which, by their nature or in agreement
with commercial uses, have no connection to the object of such contracts;
e) Refuse access to a network or other essential infrastructure per se
controlled, against appropriate remuneration, to any other company, since
that, without such access, this one cannot, for reasons of fact or legal, operate
as a competitor of the company in a dominant position in the upstream market
or downstream, unless the latter demonstrates that, on operational grounds
or others, such access is impossible in conditions of reasonableness.
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Article 11.
Abuse of economic dependence
1-It is prohibited, in so far as it is susceptible to affect the functioning of the market or
the structure of the competition, the abusive exploitation, by one or more companies, of the
state of economic dependence in which it is found with respect to them any
supplier or customer company, for not having equivalent alternative.
2-Can be considered as abuse, among others, the following cases:
a) The adoption of any of the behaviors provided for in points a) a d) of the n.
2 of the previous article;
b) The unjustified, total or partial ruture of an established business relationship,
taking into consideration previous business relations, the recognized uses
in the branch of economic activity and the established contractual conditions.
3-For the purposes of paragraph 1, it is understood that a company does not have an alternative
equivalent when:
a) The supply of the good or service in question, namely the service of
distribution, is ensured by a restricted number of companies; and
b) The company cannot obtain identical conditions from other partners
commercial within a reasonable time.
SECTION II
Sanctionatory process concerning restrictive practices
Article 12.
Standards applicable
1-Cases by infringement of the provisions of Articles 8, 10 and 11 shall be governed by the
provided for in this Law and, secondarily, by the general regime of the illicit of mere
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social ordering, approved by the Decree-Law No. 433/82 of October 27.
2-The provisions of the preceding paragraph shall also apply, with the necessary adaptations,
to proceedings by infraction to Articles 101 and 102 of the Treaty on the Functioning
of the European Union instituted by the Competition Authority, or in which this is
call to intervene, under the competences conferred on it by the g ) from the
n Article 6 (1) of the Statutes of the Competition Authority, approved by the
Decree-Law No. 10/2003 of January 18.
Article 13.
General rules on deadlines
1-In the lack of special provision, it is 10 working days the deadline to be required for any
act or diligence, be argued nullity, deduced incidents or exercised
any other procedural powers.
2-In the setting of the deadlines which, under the law, depend on the decision of the Authority of the
Competition, will be considered the criteria of the time reasonably necessary for
elaboration of the observations or communications to be submitted, as well as the urgency in the
practice of the act.
3-The deadlines set legally or by decision of the Competition Authority may
be extended, for one time and for equal period, upon application
reasoned, submitted before the expiry of the term.
4-A Competition Authority refuses to extend deadline whenever it understands,
fundamentedly, that the requirement has meant merely dilatory.
Article 14.
Provision of information
1-Where the Competition Authority requests, in writing, documents and other
information to companies or any other persons, whether natural or collective, the request
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shall be instructed with the following elements:
a) The legal basis, the quality in which the recipient is requested to
transmit information and the purpose of the request;
b) The deadline for the supply of the documents or for the communication of the
information;
c) The mention that companies must identify, in a reasoned manner, the
information that they consider confidential, on the grounds of business secrets,
joining, in that case, a non-confidential copy of the documents that
contain such information, expunged from them;
d) The indication that the failure to comply with the application constitutes counterordinance, in the
terms of the point h) of Article 67 (1).
2-The information and documents requested by the Competition Authority must be
provided within not less than 10 working days, or not less than 5 working days for
concrete requests for simple response, unless, by reasoned decision, is fixed
different deadline.
3-To the documents submitted voluntarily by the vised by the procedure, by the
denouncing or by any third party applies the provisions of paragraph c ) of paragraph 1.
Article 15.
Notifications
1-The notifications are made by registered letter, addressed to the registered office or
domicile of the recipient, or personally, if necessary, through the entities
police officers.
2-When the recipient has no registered office or domicile in Portugal, the notification is
held at the branch, agency or representation in Portugal or, if they do not exist, in the
registered office or domicile abroad.
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3-A notification of cautionary measure, of note of ilicitude, of a filing decision,
with or without imposition of conditions, of sentencing decision in procedure of
transaction and decision with admoestation or that applies fine and too much sanctions, or
that respects the practice of personal act, is always directed at the targeted.
4-Where the visage is not found or refuses to receive the notification to which if
refers to the preceding paragraph, it is deemed to be notified by advertisement published in a
of the newspapers of greatest national circulation, with summary indication of the imputation which
is made.
5-The notifications are also made to the lawyer or defender, when constituted or
appointed, without prejudice to being similarly made to the target in the cases provided for
in paragraph 3.
6-A postal notification is presumed to be made on the third and the seventh working day following that of the
registration in the cases of paragraph 1 and the second part of paragraph 2, respectively.
7-In the case provided for in paragraph 5, the deadline for the practice of procedural act subsequent to the
notification is due to the working day following the date of the notification that was made
in last place.
8-A lack of comparison of the target-endorsed by the act for which it has been notified
in the terms of this Article shall not preclude the counterordinance process from following the
your terms.
Article 16.
Opening of the survey
1-A Competition Authority proceeds from the opening of inquiry by prohibited practices
by Articles 8, 10 and 11 of this Law or by Articles 101 and 102 of the Treaty
on the Functioning of the European Union, officiously or in the wake of
denunciation, respecting the provisions of Article 6 of this Law.
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2-Within the scope of the investigation, the Competition Authority promotes the representations of
research necessary for the determination of the existence of a restrictive practice of the
competition and its agents, as well as to the collection of proof.
3-All public entities, specifically the services of direct administration,
indirect or autonomous of the State, as well as the administrative authorities
independent, have a duty to participate in the Competition Authority the facts of
who take notice, susceptible to being skilled as restrictive practices
of the competition.
4-Any person, singular or collective, who has news of a restrictive practice may
report it to the Competition Authority, as long as it presents complaint using for
the effect the form approved by the Competition Authority and advertised in its
electro page.
Article 17.
Powers of surveyor, search and seizure
1-In the exercise of sanctionatory powers, the Competition Authority, through the
your organs or employees, may, specifically:
a) Interrogate the company and too many people involved, personally or through
legal representative, as well as to ask them for documents and other elements of
information that understands convenient or necessary for the clarification of the
facts;
b) Inquire about any other persons, personally or through representatives
legal, whose statements consider pertinent, as well as solicit them
documents and other elements of information;
c) Proceeding, in the premises, land or means of transport of undertakings or of
associations of companies, the search, examination, collection and seizure of extracts from the
writing and too much documentation, regardless of your support, whenever
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such representations shall show themselves necessary for the obtaining of proof;
d) Proceed to sealing the premises of the premises of companies and associations of
companies in which they find themselves or are susceptible to finding elements
of the writing or too much documentation, as well as of the supporting supports,
including computers and other electrolytic storage equipment
of data, during the period and to the extent strictly necessary to the realization
of the representations referred to in the preceding paragraph;
e) Apply for any services from the Public Administration, including the entities
police officers, the collaboration that is shown to be necessary to the cabal performance of their
functions.
2-The representations provided for in points c) and d) of the previous number depend on the decision of the
competent judicial authority.
3-A authorization referred to in the preceding paragraph is requested in advance by the Authority of the
Competition, in a reasoned application, owing the order to be delivered in the
deadline of 48 hours.
4-Employs who, abroad, proceed to the representations provided for in the 4 a) a c) from the
n. 1 must be carriers:
a) In the cases of the items a) and b) , of credential issued by the Authority of the
Competition, from which it will build the purpose of the due diligence;
b) In the cases of the paragraph c) , of the credential referred to in the preceding paragraph and of the order
provided for in paragraph 3, which is, at that time, notified to the target.
5-A notification referred to in paragraph 5-A b) of the previous number is carried out in the person of the
legal representative or, in the absence of the same, in that of any collaborator of the company
or association of companies that find themselves present.
6-In the realization of the representations provided for in points c) and d) of paragraph 1, the Authority of
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Competition can make you follow up with the police entities.
7-Not meeting in the premises the legal representative of the target, workers or
other collaborators, or there is refusal of the notification, the same is effected by
duplicate fixation of the term of the due diligence, in visible place of the premises.
8-Of the representations provided for in points a) a d) of paragraph 1 is drawn up auto, which is notified
to the visors.
9-A lack of comparisons of the people called upon to give statements along the
Competition Authority shall not prevent the proceedings from pursuing its terms.
Article 18.
Home search
1-Existing founded suspicion that there are, in the domicile of partners, of members of
organs of administration and of employees and collaborators of companies or
associations of companies, evidence of serious breach of Articles 8 or 10 of the present
law or of articles 101 or 102 of the Treaty on the Functioning of the Union
European, can be carried out search domiciliary, which must be authorized, by dispatch,
by the judge of instruction, the application of the Competition Authority.
2-The application must mention the seriousness of the infraction investigated, the relevance of the
means of proof sought, the participation of the company or association of companies
involved and the reasonableness of the suspicion that the evidence is guarded at home
for which authorisation is sought.
3-The judge of instruction may order the Competition Authority to provide
information on the elements that are necessary for the control of the
proportionality of the required due diligence.
4-The dispatch is to be delivered within 48 hours, identifying the object and the
purpose of the due diligence, setting the date on which this has started and indicating the
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possibility of judicial challenge.
5-The domicile search applies to the provisions of the b) of paragraph 4 and in paragraphs 5 a to 8 of the article
17., with the necessary adaptations.
6-A The search home inhabited or in a closed dependency can only be ordered or
authorized by the judge of instruction and carried out between 7 and 21 pm, under penalty of
nullity.
7-Addressing search in attorney's office or in doctor's office, this is
held, under penalty of nullity, in the presence of the investigating judge, which warns
beforehand the President of the local council of the Order of Lawyers or of the Order
of the Physicians, so that the same, or one of your delegate, may be present.
8-The standards provided for in this Article apply, with the necessary adaptations, to
searches to be carried out in other places, including vehicles, of associates, members of organs of
administration and employees or collaborators of companies or associations of
companies.
Article 19.
Seizure
1-The seizures of documents, regardless of their nature or their support,
are authorised, ordered or validated by dispatching of the judicial authority.
2-A Competition Authority may make apprehensions in the course of searches or
when there is urgency or danger in the delay.
3-The seizures made by the Competition Authority not beforehand
authorized or ordered are subject to validation by the judicial authority, at the time
maximum of 72 hours.
4-To the seizure of documents operated in office of attorney or in office
physician is correspondingly applicable to the provisions of paragraphs 7 and 8 of the previous article.
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5-In cases referred to in the preceding paragraph is not permitted, under penalty of nullity, the
seizure of documents covered by the professional secret, or covered by
secret medical professional, unless they themselves constitute object or element of the
infringement.
6-A seizure in banks or other credit institutions of covered documents
by bank secrecy is carried out by the investigating judge, when he has founded reasons
to believe that they are related to an offence and reveal themselves of great
interest for the discovery of the truth or for the proof, even if they do not belong to the
toured.
7-The investigating judge can examine any bank documentation for discovery
of the objects to be seized in the terms of the previous number.
8-The examination is made personally by the judge of instruction, coadjuvated, when necessary,
by the police entities and qualified technicians of the Competition Authority,
staying connected by duty of secrecy with respect to all that they have
has become aware of and has no interest in the proof
Article 20.
Territorial competence
It is competent to authorize the representations provided for in points c) and d) of Article 17 (1)
and in articles 18 and 19 the Public Prosecutor's Office or, where expressly provided for, the judge of
instruction, both from the area of the Competition Authority's headquarters.
Article 21.
Transaction procedure in the survey
1-In the course of the investigation, the Competition Authority may set deadline, not less
to 10 working days, so that the target-endorsed by the survey manifests itself in writing.
of participating in talks, with a view to the eventual proposal submission of
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transaction.
2-In the course of the investigation, the enquiry endorsed by the inquiry may manifest, by application
written directed at the Competition Authority, its intention to initiate talks,
with a view to the eventual submission of transaction proposal.
3-The target of the enquiry participating in the transaction talks shall be
informed by the Competition Authority, 10 working days prior to start of the same,
of the facts that are charged to you, of the means of proof that allow the imputation of the
sanctions and the legal measure of the fine.
4-The information referred to in the preceding paragraph, as well as any others that are
provided by the Competition Authority in the course of the talks, are
confidential, without prejudice to the Competition Authority expressly
authorize its disclosure to the target of the inquiry.
5-A Competition Authority may, at any time, by decision not susceptible
of appeal, end the talks, in respect of one or more targeted by the
survey, if it considers that they do not allow to achieve procedural gains.
6-Completed the talks, the Fixed Competition Authority, not less than
10 working days, for the purpose of the enquiry to present, in writing, your proposal of
transaction.
7-A transaction proposal submitted by the target should reflect the result of the
talks and acknowledge their responsibility in the infraction in question, and may not
be, by this one, unilaterally revoked.
8-Received the transaction proposal, the Competition Authority proceeds to its
assessment, verifying compliance with the provisions of the preceding paragraph, and
reject it by non-susceptible decision of appeal, if it considers it unfounded, or accepting it,
proceeding to the elaboration and notification of the transaction minuta containing the
identification of the target, the summary description of the imputed facts, the mention of the
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violated legal provisions and the indication of the terms of the transaction, including the sanctions
concretely applied, mentioning the percentage of reduction of the fine.
9-The target endorsed by the procedure confirms, in writing, within not less than 10 working days
after the notification, that the minuta of transaction reflects the content of its proposals.
10-In case the targeted by the process does not manifest its agreement, in the terms of the number
previous, the process of counterordinance continues its terms, by staying without effect
the minuta of transaction referred to in paragraph 8.
11-A transaction proposal submitted pursuant to paragraph 7 is deemed to be repealed,
the period referred to in paragraph 9 without a demonstration of concordance of the visage by the
process, and it cannot be used as evidence against any target in the
transaction procedure.
12-A transaction minuta convoluted in definitive condemnatory decision, with the
confirmation of the target by the procedure, pursuant to paragraph 9, and the payment of the fine
applied, and the facts may not be appreciated again as the counterordinance for the
effects of this Law.
13-The facts confessed by the visage for the proceedings in the sentencing decision to which if
refers to the preceding paragraph may not be judicially challenged for the purpose of
recourse under Rule 83.
14-A reduction of the fine under Article 77 in the follow-up to the presentation of a
applied for the purpose is summed up to the reduction of the fine that takes place on the terms
of this article.
15-For the purposes of the provisions of Article 24 (1), the Competition Authority grants
access to the transaction proposals submitted pursuant to this article, no
being of them allowed any reproduction, except if authorized by the author.
16-Not granted third party access to the transaction proposals presented in the
terms of this article, except if authorized by the author.
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Article 22.
Archiving upon imposition of conditions in the survey
1-A Competition Authority may accept commitments proposed by the target that
are susceptible to eliminate the effects on competition arising from the practices
in cause, filing the process upon imposition of conditions intended for
ensure compliance with the proposed commitments.
2-A Competition Authority, where it considers it appropriate, notifies the target by the
inquiry of a preliminary assessment of the facts, giving you the opportunity to
present suspenceable commitments to eliminate the effects on competition
arising from the practices in question.
3-A Competition Authority or those targeted by the survey may decide to interrupt
the talks at any time, continuing the process of counterordinating the
your terms.
4-Prior to the approval of a filing decision upon imposition of
conditions, the Competition Authority publishes on its electro-page and in two
of the newspapers of greater national circulation, at the expense of the target survey, summary
of the process, identifying the said person, as well as the essential content of the
proposed commitments, setting deadline not less than 20 working days for the
presentation of comments by interested third parties.
5-A The decision identifies the one targeted by the survey, the facts that are attributed to it, the object
of the investigation, the objections expressed, the conditions imposed by the Authority of the
Competition, the obligations of the target of the survey relating to the compliance of the
conditions and the manner of their surveillance.
6-A filing decision upon acceptance of commitments and the imposition of
conditions under this article does not conclude by the existence of an infraction to the
present law, but makes it mandatory for recipients to comply with the
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commitments made.
7-Without prejudice to the sanctions that should be applied, the Competition Authority
may, within 2 years, reopen the process that has been filed with conditions,
whenever:
a) A substantial change of the de facto situation has occurred in which the decision
has founded;
b) The conditions are not met;
c) The filing decision has been founded on false information, inaccurate
or incomplete.
8-Compete to the Competition Authority check the fulfilment of the conditions.
9-A The verification of the fulfilment of the conditions prevents the reopening of the proceedings, in the
terms of paragraph 7.
Article 23.
Decision of the survey
1-The survey shall be closed, where possible, within a maximum of 18 months to
count of the opening order of the process.
2-Where it is found not to be possible to meet the deadline referred to in the number
previous, the Council of the Competition Authority gives notice to the target by the
process from that circumstance and the period necessary for the completion of the investigation.
3-Terminated the survey, the Competition Authority decides:
a) Initiate the instruction, through notification of note of ilicitude to the target,
where it concludes, on the basis of the investigations carried out, that there is a
reasonable possibility to come to be handed a damning decision;
b) Proceed to the filing of the case, when the investigations carried out do not
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allow to conclude by the reasonable possibility of a decision to come to be delivered
condensation;
c) Putting an end to the process, by sentencing decision, in transaction procedure;
d) Proceeding to the archiving of the procedure by imposing conditions, in the
terms set out in the previous article.
4-Should the investigation have been originated by complaint, the Competition Authority,
when you consider, on the basis of the information available to you, that there is no such
reasonable possibility to come to be handed down the sentencing decision, informs the
denouncing of respect for reasons and fixed term limit, not less than 10 working days,
for this to present, in writing, his observations.
5-If the whistleblower presents his / her observations within the time limit set and the
Competition Authority to consider that the same do not reveal, direct or
indirectly, a reasonable possibility to come to be handed a decision
condensation, the process is shelved.
6-A The decision to file the file is notified to the target and, if it exists, to the
denouncing.
Article 24.
Statement of the process
1-In the notification of the note of ilicitude referred to in point (s) a) of paragraph 1 of the previous article,
the Competition Authority fixed to the target by the reasonable time process, not
less than 20 working days, so that you will comment in writing on the issues that
may be interested in the decision of the case, as well as on the evidence produced, and
so that it requires the complementary representations of proof that it considers convenient.
2-In the pronunciation in writing referred to in the preceding paragraph, the target-vised
may require that it be complemented by an oral hearing.
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3-A Competition Authority may refuse, through reasoned decision, to
fulfillment of the complementary evidence required when the same
are manifestly irrelevant or have a dilatory aim.
4-A Competition Authority may carry out complementary representations of proof,
specifically those laid down in Article 17 (1), even after the pronunciation of the
targeted by the process referred to in paragraph 1 of this article and of the realization of the
oral hearing.
5-A Competition Authority notifies the target of the process of the joining to the proceedings
of the probatory elements ascertained in the terms of the preceding number, fixing it
reasonable time, not less than 10 working days, to pronounce.
6-Where the probatory elements ascertained as a result of representations
supplementary evidence to substantially change the facts initially charged
to the one targeted by the process or its qualification, the Competition Authority issues
new note of ilicitude, applying the provisions of the n. ºs 1 and 2.
7-A Competition Authority adopts, under its powers of regulation,
Guidelines on procedural research and tramway.
Article 25.
Oral hearing
1-A The hearing referred to in paragraph 2 of the preceding Article shall be held before the Authority of the
Competition, in the presence of the applicant, being admitted to participate in persons,
singular or collective, which the same understands to be able to clarify concrete aspements of the
your written pronunciation.
2-Being several of the applicants, the respect hearings are held separately.
3-In your written pronunciation, the applicant identifies the issues you want to see
enlightened at the oral hearing.
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4-In oral hearing, the applicant, directly or through the persons referred to in paragraph 1,
presents its clarifications, being admitted to the joining of documents.
5-A Competition Authority may formulate questions to those present.
6-A hearing is recorded and the recording autured by term.
7-From the holding of the hearing, as well as from the documents together, is dishwasher term, signed
by all the gifts.
8-From the term referred to in the preceding paragraph, of the documents and the recording are extracted
copies, which are sent to the applicant and notified to the remaining vises by the
process, haventhem.
Article 26.
Transaction procedure in the statement
1-In the pronunciation to which Article 24 (1) is referred to, the target vised may
submit a transaction proposal, with the confession of the facts and the recognition
of your responsibility in the infraction in question, and may not by this be unilaterally
revoked.
2-A submission of transaction proposal, pursuant to the preceding paragraph, suspending the
term of Article 24 (1), for the period fixed by the Competition Authority,
may not exceed 30 working days.
3-Received the transaction proposal, the Competition Authority proceeds to its
assessment, and may reject it, by decision not susceptible to appeal, if it considers it
unfounded, or accept it, proceeding to notification of the minuta of transaction containing the
indication of the terms of transaction, including the concretely applied sanctions and the
percentage of the reduction of the fine.
4-A Competition Authority gives the target to the process a time limit not less than 10
working days for this to proceed to the written confirmation that the transaction minuta
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notified under the terms of the preceding paragraph reflects the content of its transaction proposal.
5-In case the targeted by the process does not proceed to the confirmation of the transaction proposal, in the
terms of the previous number, the process of counterordinance follows its terms,
by becoming without effect the decision referred to in paragraph 3.
6-A transaction proposal submitted pursuant to paragraph 1 is deemed to be repealed,
the period referred to in paragraph 4 without a demonstration of concordance of the visage by the
process, and it cannot be used as proof element against any target
by the transaction procedure.
7-A transaction minuta convoluted in definitive condemnatory decision with the
confirmation by the target by the procedure, pursuant to paragraph 4, and the payment of the fine
applied, and the facts may not be appreciated again as the counterordinance to
effects of this Law.
8-The facts confessed by the visage for the proceedings in the sentencing decision to which if
refers to the preceding paragraph shall not be judicially challenged, for the purposes of
feature.
9-A reduction of the fine under Article 77 in the follow-up to the presentation of a
application of the target for the procedure to the effect is summed up to the reduction of the fine that has
place under the terms of this article.
10-For the purposes of the provisions of Article 23 (1), the Competition Authority grants
access to the transaction proposals submitted pursuant to this article, no
being of them allowed any reproduction, except if authorized by the author.
11-Not granted third party access to the transaction proposals presented in the
terms of this article, except if authorized by the author.
Article 27.
Archiving upon imposition of conditions on the instruction
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In the course of the instruction, the Competition Authority may file the case,
upon imposition of conditions, applying the provisions of Article 22.
Article 28.
Completion of the statement
1-A instruction must be completed, where possible, within a maximum of 12 months
count of the notification of the note of ilicitude.
2-Where it is found not to be possible to meet the deadline referred to in the number
previous, the Council of the Competition Authority gives notice to the target by the
process of this circumstance and the period required for the completion of the instruction.
3-Completed the instruction, the Competition Authority adopts, on the basis of the report of the
instructor service, a final decision, in which you can:
a) Declare the existence of a restrictive practice of competition and, being the case
of this, consider it justified, under the terms and conditions laid down in Article 9;
b) Provide conviction in transaction procedure, pursuant to Rule 26;
c) Order the filing of the proceedings upon imposition of conditions, in the
terms of the previous article;
d) Order the filing of the process without conditions.
4-The decisions referred to in the first part of the paragraph a) of paragraph 3 may be accompanied by
of admoestation or of the application of the fines and too much penalties provided for in Articles 67,
70., 71 and, being the case, of the imposition of measures of conduct or character
structural that are indispensable to the cessation of the restrictive practice of competition or
of its effects.
5-The structural character measures referred to in the preceding paragraph can only be
imposed when there is no such measure of conduct as equally effective or,
existing, the same is more onerous for the targeted by the process than the measures of
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structural character.
Article 29.
Business secrets
1-In the instruction of proceedings, the Competition Authority acauctions the legitimate interest
of the companies, associations of companies or other entities in the non-disclosure of their
business secrets, without prejudice to the provisions of paragraph 3 of the following article.
2-After the realization of the representations provided for in points c ) and d ) of Article 17 (1), the
Competition Authority grants the target for the duration of the case, not less than 10
working days, to identify, in a reasoned manner, the information collected that
consider confidential by reason of business secrecy, by putting together, in that case, a
non-confidential copy of the documents containing such information, expunged
of the same.
3-Whenever the Competition Authority intends to join the process documents
that contain information susceptible to being classified as business secrets,
grants to the company, association of companies or other entity to which the same if
refer to the opportunity to speak out, in the terms of the preceding paragraph.
4-If, in response to the solicitation provided for in paragraphs 2 and 3 or in Article 14, the Company,
association of companies or other entity does not identify the information it considers
confidential, do not substantiate such identification or otherwise provide non-confidential copy
of the documents containing them, expunged from them, the information
consider themselves to be non-confidential.
5-If the Competition Authority does not agree with the classification of the information
as a business secret, in the terms in the previous number, informs the company,
association of companies or other entity of which it does not agree in whole or in part
with the request for confidentiality.
Article 30.
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Proof
1-Constitud object of the evidence all the legally relevant facts for the
demonstration of the existence or non-existence of the infraction, the punibility or not
punishability of the target by the process, the determination of the applicable sanction and the measure of the
cofine.
2-The evidence that is not prohibited by law shall be admissible.
3-Without prejudice to the warranty of the rights of the defence of the target by the procedure, the Authority
of the Competition may use as means of proof for the demonstration of a
infraction to the standards of competition provided for in this Law or in Union law
European, the information classified as confidential, by reason of secrets of
business, under the paragraph c) of Article 14 (1) and (3) and paragraphs 2 and 3 of the
previous article.
4-Unless the law dispends differently, the proof is appreciated under the rules of the
experience and the free conviction of the Competition Authority.
5-A information and documentation obtained within the framework of supervision or in proceedings
sanctionals of the Competition Authority can be used as a means of
evidence in an ongoing sanctionatory process or to be established, as long as the companies
are made clear in advance of the possibility of such use in the applications of
information that is directed and in the representations made by the Authority of the
Competition.
Article 31.
Publicity of the process and secret of justice
1-The process is public, ressaving the exceptions provided for in the law.
2-A Competition Authority may determine that the process is subject to secrecy
of justice until the final decision, when it considers that advertising harms interests
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of the investigation.
3-A Competition Authority may, officiously or upon application of the
targeted by the process, determine the subjection of the process the secret of justice up to the
final decision, when to understand that the rights of that justify it.
4-In the event that the case has been subject to secrecy of justice, the Authority of
Competition may, officiously or upon application of the vised by the process,
determine your surveying at any time in the process, considering the
interests referred to in the preceding paragraphs.
5-Without prejudice to the requests of the judicial authorities, the Competition Authority
may give knowledge to third parties of the content of act or document in secret
of justice, if this does not puser the investigation and appear convenient to the
clarification of the truth.
Article 32.
Access to the process
1-The visage by the process may, upon application, consult the process and of it
obtain, at the expense of their, extracts, copies or certificates, save the provisions of the number
next.
2-A Competition Authority may, up to the notification of the note of ilicitude, veer to the
targeted by the process access to the process, should this have been subject to secret of
justice under the terms of paragraph 2 of the preceding article, and when to consider that such access may
harm the investigation.
3-Any person, singular or collective, who demonstrates legitimate interest in the consultation of the
process may require it, as well as that it be provided to you, at your own expense, copy,
excerpt or certificate of the same, save the provisions of the previous article.
4-Access to the documents referred to in Rule 30 (3) is given only to the lawyer
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or to the external economic advisor and strictly for the purposes of the exercise of defence
in accordance with Article 24 (1) and the judicial challenge of the decision of the Authority
of the Competition in which the said elements have been used as a means of
proof, not being allowed for their reproduction, in whole or in part by any means, nor the
its use for any other purpose.
Article 33.
Precautionary measures
1-Whenever carried out investigations indict that the practice that is the object of the process
is on the verge of causing injury, serious and irreparable or difficult repair for the
competition, may the Competition Authority, at any time in the process,
order to pre-emptively order the immediate suspension of the said restrictive practice or
any other interim measures necessary for the immediate repose of the competition
or indispensable to the useful effect of the decision to be delivered at the end of the procedure.
2-The measures provided for in this article may be adopted by the Competition Authority
officiously or the requirement of any interested and vigorous up to their
revocation, for a period not exceeding 90 days, unless extension, duly
grounded, by equal periods, and the decision of the survey to be handed down in the
maximum term of 180 days.
3-A The adoption of the measures referred to in paragraph 1 shall be preceded by hearing of the visors, except if
such a puser at serious risk the goal or the effectiveness of it, in which case they are heard
after enacted.
4-Whenever a market is concerned that is the object of sectoral regulation, the
Competition Authority requests the prior opinion of the respective authority
regulator, which, wanting, has the maximum time limit of 5 working days to issue it.
5-In the event of an urgency, the Competition Authority can officiously determine the
provisional measures that show indispensable for re-establishment or
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maintenance of an effective competition, being the interested ears after the
decision.
6-In the case provided for in the preceding paragraph, when it is in market cause that is
object of sectoral regulation, the opinion of the respected regulator is requested
by the Competition Authority prior to the decision that orders interim measures.
Article 34.
Articulation with sectoral regulatory authorities in the framework of restrictive practices
of competition
1-Whenever the Competition Authority takes notice, in the terms provided for
in Article 16, of facts occurring in a field subjected to sectoral regulation and
susceptible to being skilled as restrictive practices, gives immediate knowledge of the
same to the relevant sectoral regulatory authority on the grounds of matter, to which
this is pronounced, within a time limit set by the Competition Authority.
2-Whenever they are concerned with restrictive practices with an incidence in a market that is
object of sectoral regulation, the adoption of a decision by the Authority of the
Competition pursuant to Article 28 (1) is preceded, save in the cases of
filing without conditions, from prior opinion of the respecting regulatory authority
sector, which will be issued within a time limit set by the Competition Authority.
3-Where, in the context of the respective attributions and without prejudice to the provisions of paragraph 3
of Article 16, a sectoral regulatory authority to appreciate, officiously or at the request
of regulated entities, issues that could set up a violation of the provisions of the
present law, gives immediate knowledge to the Competition Authority, by joining
information of the essential elements.
4-Before the adoption of final decision, the sectoral regulatory authority gives knowledge of the
project from the same to the Competition Authority, for this to address the deadline
that is fixed to him.
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5-In the cases provided for in the preceding paragraphs, the Competition Authority may, by
reasoned decision, suspend its decision to institute an investigation or continue the
process, by the time frame it considers appropriate.
CHAPTER III
Merger operations of companies
SECTION I
Operations subject to control
Article 35.
Concentration of companies
1-There is an understanding that there is a concentration of companies, for the purposes of this Law, when
whether to check a lasting change of control over all or part of a
or more companies, as a result:
a) From the merger of two or more companies or parts of companies previously
independent;
b) Of the acquisition, direct or indirect, of the control of the whole or parts of the
social capital or elements of the asset of one or several other companies,
by one or more companies or by one or more people who already detain the
control of at least one company.
2-A The creation of a joint venture constitutes a concentration of companies, in aceway
of the paragraph b) from the previous number, provided that the joint venture performs in a manner
lasting the functions of an autonomous economic entity.
3-For the purposes of the provisions of the preceding paragraphs, the control stems from any act,
regardless of the form that this takes, which entails the possibility of exercising,
with lasting character, in isolation or in tandem, and taking into account the
circumstances of fact or law, a determining influence on the activity of
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a company, namely:
a) The acquisition of all or part of the social capital;
b) The acquisition of rights of ownership, use or fruition over the whole
or part of the assets of a company;
c) The acquisition of rights or conclusion of contracts that confirm an influence
determinant in the composition or deliberations or decisions of the organs of
a company.
4-It is not havibe as a concentration of companies:
a) The acquisition of stakes or assets by the insolvency administrator in the
scope of an insolvency proceedings;
b) The acquisition of shareholdings with merit-bearing functions;
c) The acquisition of shareholdings by credit institutions, financial companies
or insurance companies in companies with distinct object from the object of any
one of these three types of companies, with merely temporary character and to
resale effects, provided that such an acquisition is not carried out on a basis
lasting, do not exercise the voting rights inherent in such shareholdings with
the objective of determining the competitive behavior of the said companies
or that they will only exercise such voting rights with the aim of preparing the
total or partial disposal of the said companies or their asset or the disposal
of these holdings, and as long as such divestance occurs within 1 year of
of the date of the acquisition, and the deadline may be extended by the Authority of the
Competition if the acquirers show that the disposal in question was not
possible, by reason served, at the time referred to.
Article 36.
Prior notification
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1-The concentration operations of companies are subject to prior notification when
they fulfil one of the following conditions:
a) As a result of its realization if it acquiess, create or reinforce an equal quota
or more than 50% in the national market of determined good or service, or
in a substantial part of this;
b) As a result of its realization if it acquiess, create or reinforce an equal quota
or more than 30% and less than 50% in the national market of determined well
or service, or in a substantial part of this, provided that the turnover
performed individually in Portugal, in the last exercise, for at least
two of the companies participating in the concentration is higher than
EUR 5 million, net of the taxes with these directly related;
c) The ensemble of the companies participating in the concentration has carried out in
Portugal, in the last financial year, a turnover of more than 100 million
of euros, net of the taxes with this directly related, as long as the
business volume carried out individually in Portugal by, at least
two of these companies, be more than 5 million euros.
2-The operations of concentration covered by this Act shall be notified to the
Competition Authority after the conclusion of the agreement and before it was held, being
case of this, after the date of the release of the preliminary announcement of a public offer of
acquisition or exchange, or the disclosure of announcement of acquisition of a stake of
control in company issuer of shares admitted to trading on market
regulated, or still, in the case of a concentration operation that results from
procedure for the formation of public contract, after the final award and
before realized.
3-In cases referred to in the final part of the preceding paragraph, the contracting authority
shall regulate, in the programme of the procedure for the formation of public contract, the
articulation of that procedure with the regime of control of operations of
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concentration enshrined in this Law.
4-When companies participating in a merger demonetisate
together with the Competition Authority a serious intention to conclude an agreement or, in the
case of a public takeover bid or exchange, the public intention to carry out such
offer, provided that the planned agreement or offer results in an operation of
concentration, the same may be the object of voluntary notification to the Authority of the
Competition, in a phase prior to that of the constitution of the obligation laid down in the number
previous.
5-Projected concentration operations may be the object of prior evaluation by the
Authority of Competition, second procedure established by the same.
Article 37.
Set of operations
1-Two or more concentration operations that are carried out in a period of 2 years
between the same natural or collective persons, and which individually considered
are not subject to prior notification, are considered to be a single operation of
concentration subject to prior notification, when the set of the operations reaches the
business volume values set out in paragraph 1 of the preceding article.
2-A The concentration operation referred to in the preceding paragraph shall be notified to the
Competition Authority after the conclusion of the agreement for the realization of the latter
operation and before this was carried out.
3-The concentration operations referred to in paragraph 1, which individually considered
are not subject to prior notification and have already been carried out, do not apply the
provisions of Article 39 (4) and (I) f) of Article 67 (1).
Article 38.
Market share and turnover
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1-For the calculation of the market share and turnover of each company in
cause in the concentration, provided for in Article 36 (1), shall be taken into account,
cumulatively, the volume of business:
a) Of the company concerned in the concentration, pursuant to Rule 35;
b) Of the company in which this has directly or indirectly:
i) From a majority stake in the capital;
ii) From more than half the votes;
iii) From the possibility of designating more than half of the members of the organ of
administration or surveillance;
iv) Of the power to manage the respective business;
c) Of the companies that they have in the company concerned, either in isolation or together,
of the rights or powers listed in the preceding paragraph;
d) Of the companies in which any of the companies referred to in the preceding paragraph
has the rights or powers listed in the paragraph b) ;
e) Of the undertakings in which several companies referred to in points a) a d) have in
set, among them or with third-party companies, of the rights or powers
listed in the letter b) .
2-In the case of one or several companies participating in the merger
jointly have, among them or with third-party companies, rights or powers
listed in the letter b) of the previous number, in the calculation of the turnover of
each of the companies concerned in the operation of concentration, matters:
a) Do not take into account the volume of business resulting from the sale of
products or the provision of services carried out between the joint venture and each
one of the companies concerned in the operation of concentration or any other
company linked to these in the acetion of the points b) a e) of the previous number;
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b) Take into account the volume of business resulting from the sale of products
and the provision of services carried out between the joint venture and any other
company third, which will be imputed to each of the companies concerned in the
concentration operation, in the part corresponding to its division in parts
equal by all the companies that control the joint venture.
3-The volume of business referred to in the previous figures comprises the values
of the products sold and the services provided to companies and consumers in the
Portuguese territory, net of taxes directly related to the volume of
business, but does not include the transactions effected between the companies referred to in paragraph 1.
4-By way of derogation from the provisions of paragraph 1, if the concentration consists of the
acquisition of elements of the asset of one or more companies, the turnover to be had
in consideration regarding the transferor is only the relative to the plots that are object
of the transaction.
5-The turnover is replaced:
a) In the case of credit institutions and financial companies, by the sum of the
following items of income, as defined in the applicable law:
i) Interest and similar income;
ii) Revenue from securities:
The Income from shares and other securities of variable income;
The Income from holdings;
The Income from parts of the capital in affiliated companies;
iii) Commissions received;
iv) Net profit from financial transactions;
v) Other operating income.
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b) In the case of insurance companies, by the value of the gross written premiums paid
by residents in Portugal, which include all amounts received and the
receive under the insurance contracts effected by those companies or by
your account, including the premiums yielded to the reinsurers, with the exception of the
taxes or fees collected on the basis of the amount of premiums or their
total volume.
Article 39.
Suspension of the concentration
1-It is prohibited to carry out a concentration subject to prior notification
before notified or, having it been, before a decision by the Competition Authority,
express or tacit, of non-opposition.
2-The provisions of the preceding paragraph shall be without prejudice to the realization of a public offer of
purchase or exchange that has been notified to the Competition Authority under
of Article 36, provided that the purchaser does not exercise the voting rights inherent in the
participations in cause or the exercice only with a view to protecting the full value of the
your investment on the basis of derogation granted in the terms of the following number.
3-A Competition Authority may, upon a reasoned request from the companies in
cause, presented before or after the notification, grant a waiver to the
fulfillment of the obligations laid down in the previous figures, weighted the
consequences of the suspension of the operation or exercise of the voting rights for the
companies in question and the negative effects of the derogation for the competition, and may,
if necessary, follow up with the derogation of conditions or obligations intended for
ensure effective competition.
4-Without prejudice to the penalty provided for in the paragraph f) of Article 67 (1), after the notification
of a concentration operation carried out in violation of paragraph 1 and prior to the adoption of
a decision by the Competition Authority:
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a) Persons, natural or collective, who have acquired the control shall suspend
immediately their voting rights, staying the governing body
thank you not to practice acts that do not reengage with the normal management of the
society and by staying barred from divesture of holdings or parts of the asset
social of the acquired company;
b) The Competition Authority may, upon a reasoned request from the
persons, natural or collective who have acquired the control and weighted the
consequences of that measure for the competition, derogate from the obligation of the (
previous, and may, if necessary, accompany the derogation of conditions or of
obligations aimed at ensuring effective competition;
c) The Competition Authority may adopt the measures referred to in paragraph 4
of Article 55.
5-From the dewound or dismissation of the application for derogation referred to in paragraph 3 and to
point ( b) of paragraph 4 is up to complain, not being admitted to appeal.
6-Legal business that violating the provisions of paragraph 1 is ineffective.
Article 40.
Assessment of concentration operations
1-Concentration operations, notified in accordance with the provisions of Article 36,
are appreciated with the aim of determining their effects on the structure of the
competition, taking into account the need to preserve and develop, in the interest
of intermediate and final consumers, effective competition in the national market or
in a substantial part of this, without prejudice to the provisions of paragraph 5.
2-In the assessment referred to in the preceding paragraph shall be taken into account, in particular, the
following factors:
a) The structure of the relevant markets and the existence or non-competition by
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part of companies established in those markets or in distinct markets;
b) The position of the companies concerned in the relevant markets and their power
economic and financial, in comparison with those of its principal
competitors;
c) The potential competition and the existence, of law or in fact, of barriers to
entry into the market;
d) The possibilities of choice of suppliers, customers and users;
e) The access of the different companies to the sources of supply and to the markets of
runoff;
f) The structure of existing distribution networks;
g) The evolution of supply and demand for the products and services in question;
h) The existence of special or exclusive rights conferred by law or resulting
of the nature of the transacted products or of the services provided;
i) The control of essential infrastructure by the companies concerned and the
possibility of access to these infrastructures offered to companies
competitors;
j) The evolution of technical and economic progress that does not constitute an obstacle
to the competition, provided that the concentration of the merger directly withdraws
efficiency gains that benefit consumers;
3-Are authorized the concentrations of companies that are not susceptible to create
significant barriers to effective competition in the national market or in a part
substantial of this.
4-Unauthorized concentrations of companies that are susceptible to create
significant barriers to effective competition in the national market or in a part
substantial of this, in particular if the barriers result from the creation or reinforcement of
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a dominant position.
5-It is assumed that the decision authorising a concentration of undertakings covers
similarly the restrictions directly related to their achievement and to the same
necessary.
6-In the cases provided for in Article 35 (2), if the creation of the joint venture has by
object or as effect the coordination of competitive behavior of companies
that remain independent, in addition to the purpose of the joint venture, such
coordination is appreciated in the terms provided for in Articles 8 and 9.
SECTION II
Merger control procedure
Article 41.
Standards applicable
The procedure in control of merger control of undertakings shall govern-
if by the provisions of this section and, secondarily, by the Code of Procedure
Administrative.
Article 42.
Surveyment and provision of information
1-In the exercise of its powers of supervision, the Competition Authority may
proceed to the respondent of any persons, whether natural or collective, directly or
through legal representatives, whose statements consider pertinent.
2-A Competition Authority may request documents and other information to
companies or any other persons, whether natural or collective, and shall the request be
instructed with the following elements:
a) The legal basis and the purpose of the application;
b) The deadline for the supply of the documents or for the communication of the
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information;
c) The mention that companies or any other natural persons or
collectives must identify, in a reasoned manner, attentive the regime
applicable procedural, the information that they consider confidential in the access
legally determined to the administrative information, by joining, in that case, a
copy of the documents containing such information, expunged from the
same;
d) The indication that the default of the application constitutes counterordinance
punishable under the terms of the ( i) of Article 67 (1).
3-The provisions of the c ) of the previous number applies to all documents
submitted voluntarily by the companies or any other persons, singular
or collectives.
4-A information concerning the internal life of companies can be considered, by the
Authority of Competition, confidential in access to administrative information
when the company demonstrates that the knowledge of that information by the interested
or by third parties causes him serious injury.
5-A Competition Authority may still consider confidential information
on the internal life of companies which does not release to the conclusion of the procedure,
as well as information whose confidentiality is warranted on grounds of interest
public.
Article 43.
Notification of operation
1-A prior notification of business concentration operations is presented to the
Authority of Competition:
a) Jointly by the parties intervening in a merger, in the creation of a
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joint venture or in the acquisition of joint control over all or
part of one or several companies;
b) Individually, for the part that acquires sole control of all or
of part of one or several companies.
2-Joint notifications are presented by common representative, with powers
to send and receive documents on behalf of all notifying parties.
3-A notification is submitted on form approved by regulation of the
Competition Authority and contains all information and documents in the same
required.
4-In the case of merger transactions which, in a preliminary assessment, do not suscitem
significant barriers to competition, in accordance with criteria to be established by the
Competition Authority, the notification is submitted by form
simplified approved by regulation of the Competition Authority.
Article 44.
Production of effects of the notification
1-Without prejudice to the provisions of the following numbers, the notification produces effect on the date
where it has been submitted to the Competition Authority, pursuant to the
regulation referred to in the previous article, accompanied by the proof of payment
of the rate provided for in Article 93.
2-Whenever the information or documents set out in the notification are
incomplete or revelate inexact, taking into account the elements that should be
transmitted, pursuant to paragraphs 3 and 4 of the preceding Article, the Authority of the
Competition invites the notifying, in writing and within 7 working days, to be completed
or correct the notification within the period set by it, producing the notification effect,
in this case, on the date of the receiving of the information or documents by the Authority of the
Competition.
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3-Mediant reasoned application submitted by the notifier, may the Authority
of the Competition dismissing the presentation of certain information or
documents, if they do not prove essential, at that time, so that they will start
instruction of the procedure.
4-A dispensation of information or documents to which the number is referred
previous it does not harm your request until the adoption of a decision.
Article 45.
Desistance and resignation
The notifier may, at all times, give up the procedure or any of the applications
formulated, as well as renouning their rights or legally protected interests,
save in the cases provided for in the law.
Article 46.
Intervention in the procedure
1-Are admitted to intervene in the administrative procedure of merger control
the holders of subjective rights or legally protected interests that may be
affected by the operation of concentration and to submit to the Authority of the
Competition comments in which they express in an express and grounded manner
position as to the realization of the operation.
2-For the purposes of the provisions of the preceding paragraph, the Competition Authority, on the deadline
of 5 working days, counted from the date on which the notification produces effects, promotes the
publication of the essential elements of the concentration operation in two of the papers
of greater national circulation, at the expense of the notifier, set term, not less than 10
working days, for the submission of observations.
3-A non-submission of observations within the prescribed period extinguish the right to intervene in the
prior hearing provided for in Article 53 (1), save if the Competition Authority
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to consider that such an intervention is relevant to the instruction of the procedure and not
undermines the adoption of an express decision within the legally fixed time frame.
Article 47.
Right to information
1-Have a right to obtain information contained in the administrative control procedure
of concentrations, as provided for in the Code of Administrative Procedure and
in the following number, persons, singular or collective, with direct interest in the same
or that they demonstrate legitimate interest in the said information.
2-Between the expiry of the period for the submission of submissions to which the article
previous and the beginning of the hearing provided for in Article 53, the persons, natural or
collectives, referred to in the previous number, with the exception of the notifier, are only entitled
to be informed about the march of the procedure.
Article 48.
Instruction of the procedure
1-A Competition Authority concludes the instruction of the procedure by the deadline of 30
working days counted from the date of production of effects of the notification.
2-A Competition Authority may authorise the introduction of substantial changes to the
notification submitted, upon reasoned request from the notifier, running from
new the deadline provided in the preceding paragraph for the completion of the instruction, counted from the
prescription of the changes.
3-If, in the course of the instruction, it is necessary to disclose the provision of information or
additional documents or the correction of those that were provided, the Authority of the
Competition communicates such a fact to the notifier, fixing it reasonable time to provide
the elements in question or proceed to the indispensable corrections.
4-A communication provided for in the preceding paragraph suspending the time limit referred to in paragraph 1, with
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effects from the first working day following that of the sending respects, ending the
suspension on the day of the payout, by the Competition Authority, of the elements
requested, accompanied by the purged copy of the confidential elements, to which
refers to point c) of Article 42 (2).
5-In the course of the instruction, the Competition Authority may ask for any
other entities, public or private, the information that it considers to be convenient for
the decision of the case, which are transmitted on the deadlines by that fixed.
6-Without prejudice to the provisions of the paragraph i) of Art. 67 (1), the information obtained in
moment later in the course of the deadline set in the preceding paragraph may still be
considered by the Competition Authority, when this does not compromise the adoption
of a decision within the legally prescribed time limit for the completion of the procedure.
Article 49.
Decision
1-Until the expiry of the period referred to in paragraph 1 of the preceding article, the Authority of the
Competition decides:
a) Not to be found the operation covered by the procedure of control of
concentrations;
b) Do not object to the concentration of companies, when you consider that the operation, such
how it was notified, or following changes made by the notifier,
is not susceptible to creating significant barriers to effective competition in the
national market or in a substantial part of this;
c) Initiate an in-depth investigation, when you consider that the operation
in cause raises serious doubts, in the light of the elements collected, and in attention
to the criteria set out in Article 40, as to its compatibility with the
criterion set out in Article 40 (3), being susceptible to creating barriers
significant to the effective competition in the national market or in a part
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substantial of this.
2-The decisions taken by the Competition Authority under the terms of the b ) from the
previous paragraph may be accompanied by the imposition of conditions or obligations
intended to ensure compliance with commitments made by the notifier with
seen to ensure the maintenance of effective competition.
3-The legal business carried out in disregard of the conditions to which the
previous number are void, without prejudice to the provisions of paragraph a ) of Article 56 (1)
and in the letter g ) of Article 67 (1).
4-A The absence of a decision within the period referred to in paragraph 1 of the previous article is worth as
decision not to oppose the concentration of companies.
Article 50.
Appointments
1-A notifying you may, at all time, make commitments to ensure the
maintenance of effective competition.
2-A The submission of commitments referred to in the preceding paragraph shall determine the
suspension of the deadline for the adoption of a decision for the period of 20 working days,
starting suspension on the first business day following the submission of commitments
and ending on the day of communication to the notifier of the decision of acceptance or refusal
of the same.
3-A Competition Authority may, during the suspension of the period provided for in the number
previous, request, pursuant to Article 48 (3 a) to 6, the information that
consider necessary to assess whether the presented commitments are sufficient and
appropriate to ensure the maintenance of effective competition or any other
which are required to be necessary for the instruction of the procedure.
4-A Competition Authority refuses appointments whenever it considers that the
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your presentation has merely dilatory character or that the conditions or obligations to
taking on are insufficient or inadequate to hinder the barriers to competition that
could result from the concentration of companies, or uncertain enforceability.
5-From the refusal to which the preceding paragraph is referred to be up to the complaint, not being admitted
feature.
Article 51.
In-depth research
1-Within the maximum period of 90 working days counted from the date of production of effects of
notification referred to in Article 44, the Competition Authority shall carry out the
additional research representations that you consider necessary.
2-The research referred to in the preceding paragraph shall apply to the provisions of the n. 2 a to 6 of the
article 48.
3-The time limit referred to in paragraph 1 may be extended by the Competition Authority,
at the request of the notifier or with your agreement, up to a maximum of 20 working days.
Article 52.
Decision after in-depth investigation
1-Until the expiry of the period set out in paragraph 1 of the preceding Article, the Authority of the
Competition decides:
a) Do not object to the concentration of companies, when you consider that the operation, such
how it was notified, or following changes made by the notifier,
is not susceptible to creating significant barriers to effective competition in the
national market or in a substantial part of this;
b) Prohibit the concentration of companies, when it considers that the operation, such
how it was notified, or following changes made by the notifier,
is susceptible to creating significant barriers to effective competition in the market
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national or in a substantial part of this.
2-Should the concentration have already been carried out, the Competition Authority, in the decision to
prohibition referred to in point (s) b ) of the preceding paragraph, orders appropriate measures to the
restoration of effective competition, notably the separation of companies or
of the pooled assets, including the reversal of the operation, or the cessation of control.
3-To the decision referred to in para. a ) of paragraph 1 applies, with due adaptations, the provisions of
in Article 49 (2) and (50) and Article 50.
4-The legal business carried out in disrespect of the b ) of paragraph 1 or of paragraph 2 are
nulls, without prejudice to the provisions of the paragraph f ) of Article 67 (1).
5-A The absence of a decision within the period referred to in paragraph 1 of the previous article is worth as
decision not to opposition to the realization of the concentration.
Article 53.
Previous hearing
1-The decisions referred to in Articles 49 and 52 are taken upon hearing
prior notification of the notifier and those concerned identified in Article 46 (1).
2-Decisions under Article 52 are antecedents of a prior hearing which will have
place within the maximum period of 75 working days counted from the date of production of
effects of the notification referred to in Article 44.
3-In the absence of any interested persons who have expressed against the achievement of the
operation, the Competition Authority can dismiss the prior hearing whenever
intend to adopt a non-opposition decision without imposition of conditions.
4-A The holding of the prior hearing suspends the counting of the time limits referred to in paragraph 1 of the
articles 48 and 51.
Article 54.
Articulation with sectoral regulatory authorities within the framework of the control of
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concentrations
1-Where a concentration of companies has an incidence in a market that is
object of sector regulation, the Competition Authority, before taking a
decision that puts an end to the procedure, requests that the regulatory authority to regulate
issue opinion on the notified operation, setting a reasonable time frame for that purpose.
2-The deadline for the adoption of a decision putting an end to the procedure suspending itself
when the opinion to be issued is binding.
3-A suspension provided for in the preceding paragraph starts on the first working day following that of the
dispatch of the request to appear and ends on the day of its receiving by the Authority of the
Competition or finite the deadline set by the Competition Authority on the terms
of paragraph 1.
4-A non-issuance of binding opinion within the time limit set out in nº1 of the present
article does not prevent the Competition Authority from making a decision that puts an end
to the procedure.
5-The provisions of paragraph 1 shall be without prejudice to the exercise by the sectoral regulatory authorities
of the powers that, in the frame of their specific assignments, be legally
conferred with respect to the concentration in question.
Article 55.
Officiating procedure
1-Without prejudice to the provisions of the paragraph f) of Article 67 (1) and (1) b) of Article 71,
are the object of officiating procedure of merger control the operations of
whose realization the Competition Authority takes notice, occurred less
of 5 years, and which, in default of the provisions of the law, have not been the object of
prior notification.
2-The officiating procedure starts with the communication of the Competition Authority
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to natural or collective persons in a situation of default so that, within a time limit
reasonable, proceed to notification of the concentration in the terms set out in the
present law.
3-The officiating procedure shall be completed in the time limits provided for in Articles 48 and
51., counted from the date of production of the effects of the submission of the notification.
4-A Competition Authority may adopt at all time the measures that prove to be
necessary and appropriate to restore, as far as possible, the situation that existed
prior to the concentration of companies, namely the separation of companies or the
pooled assets, including the reversal of the operation, or the cessation of control.
Article 56.
Revocation of decisions
1-Without prejudice to the application of the corresponding penalties and invalidities in the
law, decisions of the Competition Authority can be revoked when the
concentration:
a) Has been carried out in disrespect of a decision of non-opposition with
conditions or obligations;
b) Has been authorized on the basis of false or inaccurate information concerning
essential circumstances for the decision, provided by the companies concerned in the
concentration.
2-The decisions provided for in the preceding paragraph shall be repealed by the Authority of the
Competition, by officiating administrative procedure, which observes the
formalities foreseen for the practice of the act to be revoked.
3-Without prejudice to the revocation of the decision, the Competition Authority may adopt the
all the time the measures referred to in paragraph 4 of the previous article.
SECTION III
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Sanctionatory process relating to concentrations
Article 57.
Opening of inquiry
In the context of merger control of companies, the Competition Authority
carries out the opening of inquiry, respecting the provisions of Article 6:
a) In case of realization of a concentration of companies before it has been
object of a non-opposition decision, in violation of Articles 36 and 37, of the
n. 1 and of the a) of Art. 39 (4), or that there is prohibited by decision
adopted under the paragraph b) of Article 52 (1); and
b) In the event of a disrespect of conditions, obligations or measures imposed on
companies by the Competition Authority, under the terms set out in paragraph 3 and in the
points b) and c) of Article 39 (4), in Article 49 (2), in paragraphs 2 and 3 of the
article 52, in Article 55 (4) and in Article 56 (3);
c) In the event of non-provision of information or provision of information
false, inaccurate or incomplete, in response to the request of the Authority of the
Competition, in the use of the supervisory powers;
d) In case of non-collaboration with the Competition Authority or obstruction
to the exercise of the powers provided for in Article 42.
Article 58.
Applicable regime
1-The processes referred to in the preceding Article shall be governed by the provisions of the present
section and in Articles 14, 15, 17 to 27 and 29 to 34 and, with due adaptations, in the
n. paragraphs 2, 3 and 4 of Article 16 and in Article 28 of this Law.
2-The proceedings of this section are governed by, secondarily, by the general regime of the illicit of
mere social ordering, approved by the Decree-Law No. 433/82 of October 27.
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CHAPTER IV
Studies, inspections and audits
Article 59.
Standards applicable
The procedure in respect of studies, inspections and audits is governed by, secondarily,
by the Code of Administrative Procedure.
Article 60.
Market studies and surveys by economic sectors and by types of agreements
1-A Competition Authority may carry out market studies and surveys by
economic sectors and by types of agreements that prove necessary to:
a) The supervision and monitoring of markets;
b) The verification of circumstances that indict distortions or restrictions of
competition.
2-A The conclusion of the studies is published on the Electrophic page of the Authority of the
Competition, and may be preceded by public consultation to be promoted by the Authority
of the Competition.
3-In cases where the market studies and surveys referred to in paragraph 1 say
respect to economic sectors regulated by sectoral regulatory authorities, their
conclusion must be preceded by request for non-binding opinion to the respect
sectoral regulatory authority, fixing the Competition Authority a deadline
reasonable for that purpose.
4-A non-issuance of non-binding opinion within the time limit set out in the number
previous, does not preclude the Competition Authority from completing the market study and
enquiry to which the request to appear concerns.
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5-A Competition Authority may ask companies or associations of companies
or to any other persons or entities all the information you consider
relevant from the juscompetitive point of view, applying the provisions of Article 42,
with the necessary adaptations.
Article 61.
Recommendations
1-When the Competition Authority concludes by the existence of circumstances or
conduits that affect competition in the markets or economic sectors analyzed,
shall, in the report of completion of market studies, sector survey or by
type of agreement, or in the report of inspections and audits:
a) Identify what the circumstances of the market or conduct of companies or
associations of companies that affect the competition, and to what extent;
b) Indicate which measures of behavioral or structural character you consider
appropriate to your prevention, removal or compensation.
2-Whenever the study and the respective report incidify about a market subjected to
sector regulation, the Competition Authority should give notice to the
sectoral regulatory authorities of the circumstances or pipelines affecting the
competition and the possible measures to correct the situation.
3-A Competition Authority may recommend the adoption of measures of character
behaviourmental or structural appropriate to the reposition or guarantee of competition in the
market, in the following terms:
a) When it deals with markets object of sectoral regulation, and the circumstances
identified in para. a) of the previous number result from it, the Authority
of the Competition may present to the Government and regulatory authorities
sector the recommendations it understands appropriate;
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b) In the remaining cases, the Competition Authority may recommend to the
Government and other entities the adoption of the behavioral character measures
or structural referred to.
4-A Competition Authority monitors compliance with the recommendations by you
formulated under the preceding paragraph, and may request the addresseable entities
the information you understand pertinent to its implementation.
Article 62.
Inspections and audits
1-Checking of circumstances that indict distortions or restrictions of competition, the
Competition Authority may carry out the necessary inspections and audits of the
identification of its causes.
2-In carrying out inspections and audits, the Competition Authority acts accordingly
with the powers set out in the following article, after obtaining the assentiment of the
entity targeted, in the exercise of the duty of collaboration.
3-A Competition Authority effectuates inspections and audits punctually or in
execution of previously approved inspections plans.
4-If, as a result of inspections or audits, the Competition Authority is deteeing
situations that affect the competition in the markets concerned, is correspondingly
applicable the provisions of the previous article.
Article 63.
Powers on inspection and auditing
1-A Competition Authority may perform inspections and audits of any
companies or associations of companies.
2-Inspective actions and audits to be promoted by the Competition Authority are
notified to companies and associations of companies with the minimum advance notice of 10
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working days regarding your achievement.
3-The officials and other persons mandated by the Competition Authority for
do an inspection and audit can:
a) Aceder to all the facilities, land and means of transport of the companies or
associations of companies;
b) Inspect the books and other records relating to the company or association of
companies, regardless of their support;
c) Obtain, by any form, copies or extracts of the controlled documents;
d) Request any legal representative, worker or collaborator of the company
or of the association of companies clarifications on facts or documents
related to the object and purpose of the inspection and audit and record its
answers.
4-The legal representatives of the company or association of companies, as well as the
workers and collaborators are required to provide all necessary collaboration
so that the officials and the other persons mandated by the Authority of the
Competition may exercise the powers provided for in the preceding paragraph.
5-The officials and persons mandated by the Competition Authority for
an inspection and audit must be holders of credential, from which it appears
purpose of the due diligence.
CHAPTER V
Public aid
Article 64.
Public aid
1-The aid to companies granted by the State or any other public non-
must constrain, distort or affect competitively, in whole or in
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substantial part of the national market.
2-A Competition Authority may analyse any aid or project of aid and
formulate to the Government or any other public the recommendations that it understands
necessary to eliminate the negative effects on competition.
3-A Competition Authority monitors the implementation of the recommendations formulated,
may ask any entities for information regarding their implementation.
4-A Competition Authority releases the recommendations it formulates on its page
electro.
CHAPTER VI
Regulation
Article 65.
Procedure for regulation
1-Prior to the issuance of any regulation with external effectiveness, the Authority of
Competition proceeds to the disclosure of the respective project on its electro-page, to
purposes of public discussion, for period not less than 30 working days.
2-In the preambular report of the regulations provided for in the preceding paragraph, the Authority
of the Competition substantiates its options, specifically with reference to the
opinions expressed during the period of public discussion.
3-The regulations of the Competition Authority with external effectiveness are published
in the 2 th grade of the Journal of the Republic.
CHAPTER VII
Infractions and sanctions
Article 66.
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Qualification
Without prejudice to the criminal liability and administrative measures to which there is
place, the infractions to the standards laid down in this Law and in the right of the European Union whose
observance is ensured by the Competition Authority constitute counterordinance
punishable in the terms of the provisions of this Chapter.
Article 67.
Counterorders
1-Constituent counterordinate punishable with fine:
a) The violation of the provisions of Articles 8, 10 and 11;
b) The violation of the provisions of Articles 101 and 102 of the Treaty on the
Operation of the European Union;
c) Failure to comply with the conditions referred to in subparagraph c) of the Article 1 (1)
28.
d) Failure to comply with measures imposed in accordance with Article 28 (2);
e) The disrespect of decision that enacts precautionary measures, in the terms provided for
in Article 33;
f) The realization of operation of concentration of companies before it was the object
of a non-opposition decision, in violation of Articles 36 and 37, of paragraph 1 and
of the paragraph a) of Art. 39 (4), or that hajam was prohibited by decision
adopted under the paragraph b ) of Article 52 (1);
g) The disrespect of conditions, obligations or measures imposed on companies by the
Competition Authority under the terms set out in paragraph 3 and in the paragraphs b ) and c)
of Article 39 (4), in Article 49 (2), in Article 52 (2) and (3), in the
n Article 55 (4), and in Article 56 (3);
h) The non-provision or provision of false, inaccurate or incomplete information,
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in response at the request of the Competition Authority, in the use of its powers
sanctionaries;
i) The non-provision or provision of false, inaccurate or incomplete information,
in response at the request of the Competition Authority, in the use of the powers of
supervision and in the context of carrying out studies, inspections and audits;
j) Non-collaboration with the Competition Authority or obstruction of the
exercise of the powers provided for in Articles 17 to 19, 42, and 63 and 63;
l) The unjustified lack of comparisons of whistleblower, witness or expert, in
process due diligence so that it has been regularly notified.
2-If the counterordinance consists of non-compliance with a legal duty or an order
emanating from the Competition Authority, the application of the fine does not discharge the offender
of the compliance of the same, should this still be possible.
3-A negligence is punishable.
Article 68.
Determination of the measure of the fine
1-In the determination of the measure of the fine referred to in the preceding article, the Authority of the
Competition may consider, inter alia, the following criteria:
a) The severity of the infraction for the affection of effective competition in the
national market;
b) The nature and size of the market affected by the infraction;
c) The duration of the infraction;
d) The degree of participation of the target by the process in the infraction;
e) The advantages that there is a benefit of the one targeted by the process as a result
of the infraction, when the same are identified;
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f) The behaviour of the one targeted by the process in the elimination of practices
restrictive and in the repair of the damage caused to the competition;
g) The economic situation of the target by the process;
h) The counterordinational antecedents of the one targeted by the infringement procedure to the
rules of competition;
i) The collaboration provided to the Competition Authority until the end of the
procedure.
2-In the case of the counterordinations referred to in points a ) a g ) of paragraph 1 of the previous article, the
coima determined in accordance with paragraph 1 may not exceed 10% of turnover
performed in the exercise immediately prior to the final sentencing decision delivered
by the Competition Authority, by each of the infringing companies or, in the case of
association of companies, of the aggregate turnover of the associated companies.
3-In the case of the counterordinations referred to in points h ) a j) of paragraph 1 of the previous article, the
coima determined in accordance with paragraph 1 may not exceed 1% of turnover
performed in the exercise immediately prior to the decision by each of the companies
infrasatoras or, in the case of association of companies, of the aggregate turnover of the
associated companies.
4-In the case of the counterordinations referred to in points a) a g) of paragraph 1 of the previous article, the
coima applicable to natural persons, may not exceed 10% of the remuneration
annual earned by the exercise of its duties at the infratora company, in the last year
complete in which the prohibited practice has been verified.
5-In the remuneration provided for in the preceding paragraph, they shall include, in particular, ordered,
salaries, salaries, gratuities, percentages, commissions, stakes, subsidies
or premiums, presence passwords, emoluments and ancillary remunerations, yet
periodicals, fixed or variable, of a contractual nature or not, as well as benefits
ancillary, as defined for the purposes of taxation of income, which are
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self-injured due to the provision of work or in connection with this and constitute for the
respect to the beneficiary an economic advantage.
6-In the case of the counterordinations referred to in points h ) a j) of paragraph 1 of the previous article, the
Authority of Competition may apply to natural persons, a fine of 10 a to 50
units of account.
7-In the case of the counterordinance referred to in point (s) l ) of paragraph 1 of the previous article, the
Competition Authority may apply to the whistleblower, the witness and the expert
a fine of 2 a to 10 units of account.
8-A Competition Authority adopts, under its powers of regulation,
guidelines containing the methodology to be used for the application of the fines, from
agreement with the criteria set out in this Law.
Article 69.
Dispensation or reduction of the fine
The Competition Authority may grant dispensation or reduction of the fine that would be
applied in accordance with the previous article, pursuant to this Law.
Article 70.
Ancillary sanctions
1-In case the seriousness of the infraction and the fault of the offender justifies it, the Authority of
Competition may determine the application, at the same time as the fine, of the following
ancillary sanctions:
a) Publication in the Journal of the Republic and in one of the most circulating newspapers
national, regional or local, depending on the relevant geographical market, the
expensing of the offender, from excerpt of the sentencing decision, or at least from the
decision-making part of the conviction decision handed down in the framework of a case
instituted under this Act, after the transit on trial;
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b) Deprivation of the right to participate in contract formation procedures
whose object covers typical benefits of the contracts of endeavors, of
granting of public works, public service concession, leasing or
purchase of mobile goods or purchase of services or still in
procedures for the allocation of licences or alvarás, provided that the
practice that constitutes counterordinate punishable with fine if it has verified
during or because of the relevant procedure.
2-A penalty provided for in the paragraph b ) of the previous number has the maximum duration of two years,
Counted from the sentencing decision, after the transit on trial.
Article 71.
Compulsory financial penalties
Without prejudice to the provisions of Articles 68 and 69, the Competition Authority may
decide, when this is warranted, to apply a compulsory pecuniary penalty, in an amount
not more than 5% of the daily average turnover in the year immediately preceding the
decision, by day of delay, from the date of the notification, in the following cases:
a) Non-acatation of decision of the Competition Authority imposing a
sanction or order the adoption of determined measures;
b) Lack of notification of a concentration subject to notification
prior to the terms of Articles 36 and 37.
Article 72.
Responsibility
1-By the practice of the counterordinances provided for in this Law, they may be held liable
natural persons, collective persons, regardless of the regularity of their
constitution, societies and associations without legal personality.
2-Collective persons and the riding entities referred to in the preceding paragraph
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respond by the counterordinations provided for in this Law, when committed:
a) On your behalf and in the collective interest by people who occupy them a
leading position; or
b) By whom atue under the authority of the persons referred to in the preceding paragraph
virtue of a violation of the surveillance or control duties that they
incumbent.
3-Understand that they occupy a position of leadership the person's organs and representatives
collective and who in it has the authority to exercise control of their activity.
4-A The merger, fission and processing do not determine the extinction of the responsibility of the
collective person or equiped entity, responding by the practice of the counterordinance:
a) In the case of merger, the collective person or equiped entity incorporated from
other or the result of the operation;
b) In the case of spin-off, the collective persons or equipared entities that result from the
operation or to benefit from heritage incorporations of the society
cinded;
c) In the case of processing, the collective persons or equipared entities that
result from the operation.
5-In the case of extinction of the collective person or the equating entity, by the fines in which the
same is doomed to answer the former assets of this one that have been awarded
in sharing.
6-The holders of the governing body of the collective persons and equipared entities,
as well as those responsible for the direction or surveillance of areas of activity in which
is practiced some counterordinance, incur the sanction commenced in paragraph 4 of the
article 70, when they act in the terms described in paragraph a) of paragraph 2 or when,
knowing or owing to know the practice of the infraction, do not adopt the measures
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suitable to terminate you immediately, unless more serious sanction
kayba by force of another legal provision.
7-A The responsibility of the collective persons and equiparted entities does not exclude the
individual responsibility of any natural persons, nor depends on the
accountability of these, in cases of breach of collaboration duties.
8-The companies whose representatives, at the time of the infraction, were members of the organs
directives of an association of companies that are the subject of a fine or of a
compulsory pecuniary penalty, in the terms set out in the paragraphs a) a g) of paragraph 1 of the
Article 67, in Article 68 (2) and in the previous article, are jointly and severally liable
by the payment of the fine, except if, in writing, they have laundered their opposition to the
decision constituting the infraction or of which the same resulted.
Article 73.
Prescription
1-The counterordinance procedure extinguishes itself by prescription at the time, counted in the
terms of Article 119 of the Criminal Code, of:
a) 3 years, in the cases provided for in points h ) a l) of Article 67 (1);
b) 5 years, in the remaining cases.
2-The limitation period of the sanctions is 5 years from the day on which it becomes
definitive or which transits on trial the decision that determined its application, save
in the cases provided for in paragraphs 3, 6 and 7 of Article 68, which is 3 years.
3-A The prescription of the procedure by counterordinate interrupts with the constitution
of a visage or with the notification to this of any act of the Competition Authority
that personally affects you, producing the interruption effects since the notification of the act to
any of those targeted by the process.
4-A The prescription of the procedure by counterordinance suspends:
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a) For the period of time in which the Competition Authority's decision is
object of judicial appeal;
b) From the dispatch of the case to the Public Prosecutor's Office and until its return to the
Competition Authority, under the terms set out in Article 40 of the scheme
general of the illicit of mere social ordering.
5-In cases where the Competition Authority has initiated a process of
counterordinance by infraction to Articles 101 and 102 of the Treaty on the
Functioning of the European Union, the limitation period suspending itself when the
Competition Authority, having been aware that a national authority
of competition from another member state has initiated, by the same facts, to a
process by infringement of the same articles of the Treaty, notify the target by the
process of the decision to suspend the proceedings under Article 13 (1) of the
Regulation (EC) No 1/2003, of the Council, of December 16, 2002.
6-In the case referred to in the preceding paragraph, the suspension ends on the date on which the
Competition Authority to take notice of the decision handed down in that
process.
7-A The suspension of the procedure shall not exceed 3 years.
8-A The prescription of the procedure always takes place when they have elapsed 5 or 7 years
and means, respectively in the cases of the sub-paragraphs a ) or b) of paragraph 1, ressaved the time of
suspension.
CHAPTER VIII
Dispensation or reduction of the fine in counterordinate proceedings by infringement of the
rules of competition
SECTION I
General provisions
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Article 74.
Objective scope
The dispensation or the special reduction of fines are granted in the framework of proceedings of
counterordinance that have per object agreements or concerted practices between two or
more competing companies prohibited by Article 8 of this Law and, if applicable, by the
article 101 of the Treaty on the Functioning of the European Union, which aim to coordinate
their competitive behaviours in the market or influence competitive variables
relevant, inter alia, by setting purchase or sales prices or other
transaction conditions, allocation of production or sales quotas, apportionment of
markets, including concertation in auctions and public tenders, restriction of
imports or exports or anti-competitive actions against other competitors.
Article 75.
Subjective scope
They may benefit from dispensation or reduction of the fine:
a) The undertakings, in the acetment of Article 3 (1);
b) The holders of the board of directors of the collective persons and entities
equistops, as well as those responsible for the direction or surveillance of areas of
activity in which some counterordinance is practiced, responsible in the
terms of the provisions of Article 72 (6).
SECTION II
Requirements
Article 76.
Dispensation of the fine
1-A Competition Authority grants dispensation of the applicable fine, under the terms of the
provisions of Article 69, to the Company to reveal its participation in an alleged agreement or
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concerted practice, provided that this company is the first to provide information and
elements of evidence that, in the understanding of the Competition Authority, enable it to:
a) Substantiate the application for the realization of search and seizure representations in the
terms of the point c) of Article 17 (1) and Articles 18 and 19 and, in the
timing of the delivery of the information, the Competition Authority does not
still possess sufficient elements to carry out such due diligence; or
b) Check the existence of an infraction provided for in Article 74, provided that in that
moment, the Competition Authority does not yet possess elements of
enough proof about the infraction.
2-A Competition Authority grants the dispensation of the fine, in the terms of the number
previous, provided that the company cumulatively complies with the following conditions:
a) Coopere fully and continuously with the Competition Authority since the
moment of the submission of the application for dispensation or reduction of the fine, being
the company obliged, in particular, to:
i) Provide all the information and the evidence you have or will have in your
possession or under its control;
ii) Respond promptly to any request for information that may
contribute to the determination of the facts;
iii) Abstain from the practice of any acts that may hinder the investigation,
particularly the destruction, falsification or dissimulation of information
or evidence related to the infraction;
iv) Abstaining from revealing the existence or content of the presentation, or of the intention
of submission, of the application for dispensation, unless written permission of the
Authority of Competition.
b) Put an end to your participation in the infraction, up to the time you provide the
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Competition Authority the information and the evidence referred to in point (s)
a) , except as far as is reasonably necessary, in the understanding of the
Competition Authority, to preserve the effectiveness of research;
c) Have not exercised coation over the remaining companies to participate in the
infraction.
3-The information and evidence referred to in the preceding paragraphs shall contain particulars
complete and precise about the agreement or concerted practice and the companies involved,
including the objectives, activities and functioning, the product or service in question, the
geographical scope, duration and specific information on dates, locations, content and
participants in contacts made and all relevant explanations presented in
support of the application.
Article 77.
Reduction of the fine
1-A Competition Authority grants a reduction of the fine that would be applied, in the
terms of the provisions of Article 69, to companies which, by not meeting the conditions
set out in paragraph 1 of the previous article, cumulatively comply with the following
conditions:
a) Provide information and evidence about an infraction referred to in Article 74, which
present significant additional value by reference to the information and evidence
already in the possession of the Competition Authority;
b) The conditions laid down in the paragraphs are verified a) and b) of paragraph 2 and of paragraph 3
of the previous article.
2-A Competition Authority determines the level of the reduction of the fine of the following
shape:
a) To the first company that provides information and proof of additional value
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significant is granted a reduction of 30 a to 50%;
b) To the second company that provides information and proof of additional value
significant is granted a reduction of 20 a to 30%;
c) To the following companies that provide information and evidence of additional value
significant is granted a reduction by 20%.
3-In the determination of the reduction of the fine, the Competition Authority considers the
order by which the information and proofs that fill in the
requirements set out in paragraph a) of paragraph 1 and the respective significant additional value for the
investigation and proof of the infraction.
4-If the request of any of the visages is filed after the notification referred to in
point ( a) of Article 23 (1), the levels referred to in paragraph 2 are reduced by half.
Article 78.
Holders
1-If they cooperate fully and continuously with the Competition Authority, on the terms
of the provisions of the paragraph a) of Article 76 (2), the holders of the body of administration,
as well as those responsible for the direction or surveillance of areas of activity in which
is practiced some infraction provided for in Article 74 benefit, concerning the fine
which would be applied to them, pursuant to the provisions of Article 72 (6) of the dispensation or
reduction of the fine, regardless of whether they have personally required such benefits.
2-The persons referred to in the preceding paragraph who submit application for individual
benefit, with due adaptations, of the provisions of articles 76 and 77.
SECTION III
Procedure and decision
Article 79.
Procedure
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The administrative procedure relating to the tramping of the application for dispensation or reduction
of the fine is established by regulation to be approved by the Competition Authority, in the
terms of Article 65.
Article 80.
Confidential documentation
1-A Competition Authority classifies as confidential the application for dispensation or
reduction of the fine, as well as all documents and information submitted for
effects of dispensing or reduction of the fine.
2-For the purposes of the provisions of Article 24 (1), the Competition Authority grants
to the visage by the process access to the application for dispensation or reduction of the fine, to the
documents and the information referred to in the preceding paragraph, not being permitted
any reproduction, except if authorized by the applicant.
3-The access of third parties to the applications, documents and information submitted by the
applicant, for the purposes of the dispensation or reduction of the fine, lacks permission from this.
4-When touted by the process will not be granted access to copies of your oral statements
and to third parties will be vetted access to the same
Article 81.
Decision on the application for dispensation or reduction of the fine
1-The application for dispensation or reduction of the fine is appreciated in the decision of the Authority of the
Competition as referred to in point a) of Article 28 (1).
2-A dispensation or reduction of the fine focuses on the amount that would be applied in the terms
of Article 68.
3-In the determination of the fine that is applied, it is not taken into account the criterion
provided for in paragraph i) of Article 68 (1).
CHAPTER IX
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Judicial resources
SECTION I
Counterordinational processes
Article 82.
Procedural regime
Unless provision is made in a devious sense of this Law, they apply to the interposition, to the tramway
and to the judgment of the resources provided for in this section of the following articles and,
subsidally, the general regime of the illicit of mere social ordering.
Article 83.
Appeal, competent court and the effects of the appeal
1-It is up to the appeal of decisions rendered by the Competition Authority whose
irrecorribility is not expressly provided for in this Law.
2-It is not permissible to appeal decisions of mere expediency and decisions of
archiving, with or without imposition of conditions.
3-Of the decisions rendered by the Competition Authority rests with the Tribunal
of Competition, Regulation and Supervision.
4-The appeal has merely devolutive effect, except with respect to decisions that
implement measures of structural character determined in accordance with Article 28 (2),
whose effect is suspensive.
5-In the case of decisions that apply fines or other penalties provided for in the Act, the target
may require, when interacting with the appeal, that the same has suspensive effect when the
execution of the decision causes it to cause considerable injury and offers to provide collateral in
replacement, by giving the assignment of that effect conditional on the effective provision of
caution within the time limit set by the court.
Article 84.
Appeal of interlocutory decisions
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1-Intersted appeal of an interlocutory decision of the Competition Authority, the
application is referred to the Public Prosecutor's Office within 20 working days, with
indication of the number of proceedings in the organically administrative phase.
2-The application is accompanied by any elements or information that the
Competition Authority considers relevant to the decision of the appeal, and may
be together allegations.
3-Form a single judicial process the resources of interlocutory decisions of the
Competition Authority handed down in the same process in the phase organically
administrative.
Article 85.
Appeal of cautionary measures
To the interlapping appeals of decisions of the Competition Authority, handed down in the same
process in the organically administrative phase, which enacts precautionary measures, in the
the terms of Article 33, the provisions of the preceding Article shall apply.
Article 86.
Appeal of the final decision
1-Notification of final sentencing decision delivered by the Competition Authority, the
touted by the process may appeal to judicial remedy, within 30 working days, no
extendable.
2-Interposed appeal of the final sentencing decision, the Competition Authority
referred the autos to the Public Prosecutor's Office, within 30 working days, non-extensions,
may bring together claims and other elements or information that it considers relevant
for the decision of the cause, as well as offer means of proof, without prejudice to the provisions of
in Article 70 of the general regime of the illicit mere social ordinance.
3-There have been resources of decisions of the Competition Authority, pursuant to the
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articles 84 and 85, the appeal of the final decision is processed in the autos of the single or the
first interposed feature.
4-The appeals of decisions of the Competition Authority rendered in a case,
subsequent to the final decision of the same, Article 84 (3) applies.
5-A Competition Authority, the Public Prosecutor's Office or the target-vised
oppose that the court decides by order, without a trial hearing.
6-A dismissals of the prosecution by the prosecutor's office depends on the concordance of the
Authority of Competition.
7-The court notifies the Competition Authority of the sentence, as well as of all the
dispatches that are not from mere expedient.
8-If there is place the trial hearing, the court decides on the basis of the evidence
held at the hearing, as well as in the evidence produced at the administrative stage of the
process of counterordinance.
9-A Competition Authority has legitimacy to appeal autonomously from the
decisions that are not mere expedient.
Article 87.
Control by the competent Court
1-The Court of Competition, Regulation and Supervision knows with full jurisdiction of the
intersted resources of the decisions in which it has been fixed by the Authority of the
Competition a fine or a compulsory penalty payment penalty, and may reduce or
increase the fine or periodic penalty payment penalty.
2-The decisions of the Competition Authority that apply sanctions mention the
arranged in the final part of the preceding paragraph.
Article 88.
Appeal of the court decision
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1-Of the judgments and dispatches of the Court of Competition, Regulation and Supervision rests
appeal to the Court of competent Relation, which decides in the last instance.
2-Have legitimacy to appeal:
a) The Public Prosecutor's Office and, autonomously, the Competition Authority, of
any sentences and dispatches that are not of mere expedient, including
those verwithout on nullities and other prior or incidental questions, or about
the application of precautionary measures;
b) The vised by the process.
3-To the resources provided for in this article the provisions of Article 84 (3) shall apply.
article 85 and in Article 86 (3) and 4, with the necessary adaptations.
Article 89.
Disclosure of decisions
1-A Competition Authority has a duty to publish on its electronical page a
non-confidential version of the decisions to be taken under the points of c) and d) of paragraph 1 of the
article 23, Article 28 (1), Article 49 (1) and Article 52 (1) thereof,
referring to whether the same are pending judicial appeal.
2-A Competition Authority may publish on its electronical page the version no
confidential of decisions rendered in accordance with the terms of the ( h) a l) of the Article 1 (1)
67., referring to whether the same are pending judicial remedy.
3-A Competition Authority must still publish on its page Electrophic decisions
appeals court proceedings in accordance with Article 83 (1) and paragraph 1 of the article
88.
4-A The Competition Authority may also publish, on its electronical page, the
judicial decisions of appeals instituted in accordance with Article 91 (1) and para. 1
is 3 of Article 92.
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SECTION II
Administrative procedures
Article 90.
Procedural regime
To the interposition, the tramway and the judgment of the resources referred to in this section is
applicable the provisions of the following articles and, secondarily, the scheme for the imputation
litigation of administrative acts, defined in the Code of Procedure in the Courts
Administrative.
Article 91.
Competent court and effects of the appeal
1-Of decisions of the Competition Authority handed down in procedures
administrative as referred to in this Law, as well as of the ministerial decision provided for
in Article 34 of the Statutes of the Competition Authority, approved by the Decree-
Law No. 10/2003 of January 18, it is up to the Court of Competition,
Regulation and Supervision, to be tramped as special administrative action.
2-The resource provided for in the preceding paragraph has merely devolutive effect, unless it is
is assigned, exclusive or cumulatively with other interim measures, the effect
suspensive by way of the decrement of interim measures.
Article 92.
Appeal of judicial decisions
1-Of the decisions rendered by the Court of Competition, Regulation and Supervision, in the
administrative actions referred to in this section, it shall be up to the Court of the
Competent relationship.
2-If the resource provided for in the preceding paragraph only respects matters of law, it is
interposed directly to the Supreme Court of Justice.
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3-Of the decision of the Court of the competent Relation rests with, limited to the matter of
right, to the Supreme Court of Justice.
4-The resources provided for in this article have merely devolutive effect.
CHAPTER X
Fees
Article 93.
Fees
1-Are subject to the payment of a fee:
a) The assessment of concentration operations of companies, subject to obligation to
prior notification, pursuant to the provisions of Article 36;
b) The assessment of concentrations referred to in paragraph 4 of the article
36.
c) The issuance of copies and certificates;
d) Any other acts that set up a provision of services, on the part of
Authority of Competition, to private entities.
2-The fees are fixed, settled and charged under the terms set out in regulation of the
Authority of Competition.