EU & CompEtition AnnUAl REpoRt
they didn’t learn from the lawyers – we raise problems,
doubts and concerns and give them perspectives,” says
Nuno Ruiz, Head of EU & Competition at Vieira de
Almeida & Associados. “Without these they failed before
the courts.”
The old Council concentrated on reorganisation
and restructuring, and succeeded in keeping a good
Merger Control Department, however it had a poor
enforcement record, says Carlos Botelho Moniz, Head of
EU & Competition at Morais Leitão, Galvão Teles, Soares
da Silva & Associados (MLGTS). “The new Council is
expected to take a proactive stance, especially in relation to
enforcement.”
It is also heavily focused on pursuing anti-cartel
enforcement through leniency cases, but they will need
to show a strong hand before there is a solid base for the
multiplication of such cases, says Ricardo Oliveira, Head
of EU & Competition at PLMJ. “There are many upsides to
the new Competition Law and Board, but the best way to
describe our feeling at the moment is cautious optimism.”
“The Competition Law as it is now is a powerful
instrument, and with the appointment of the new
Chairman, we hopefully have someone on the Board
whose knowledge and background anticipates a thorough
understanding of the realities of the market and an
effective application of the law,” says Mário Marques
Mendes, Founding Partner of Marques Mendes &
Associados.
Help or hindrance
Regulatory activity within the EU continues
to be of the utmost importance to facilitate
the entry and expansion of companies into
new global markets. The performance of the
Commission and members of the International
Competition Network (ICN) authorities,
coordinated among themselves and with other
competition authorities outside the EU, has
improved progressively, says Luis Berenguer, Senior
Adviser at Broseta Abogados, resulting in the
strengthening of legal certainty and facilitating the
Clients’ concerns
Today’s changing competition environment
is a real opportunity for lawyers to call
their clients’ attention to competition
and compliance, says Joaquim Caimoto
Duarte, Head of EU & Competition at
Uría Menéndez - Proença de Carvalho.
The intensification of EU and domestic
Competition Authority investigations and
sanctioning has led to a huge demand for
advice in relation to compliance.
Clients want compliance programmes
and self-assessment reports because
the companies’ managers are aware of
the high fines that may be imposed for
Competition Law infringements, says Alberto
Escudero, Head of Competition at Baker &
McKenzie, Madrid. And given that the total
amount of fines imposed by the CNMC in
the last year exceeded €400m, clients in
all industries are increasingly requesting
advice on competition compliance including
how to deal with dawn raids, says Crisanto
www.iberianlawyer.com
presence of companies in other markets.
“Of course, there are still many barriers remaining to
global business,” says Ainhoa Veiga, EU & Competition
Partner at Araoz & Rueda, “but, generally, I would say
EU regulation overwhelmingly helps more than hinders
business to operate and compete in international markets”.
This harmonisation of EU competition rules allows
foreign investors to manage their expectations, for
instance, as legal consequences of anti-competitive
practices, says António de Macedo Vitorino, Competition
Partner at Macedo Vitorino & Associados, and helps clients
operating and competing in international markets.
Some practical aspects of EU regulation, while
providing a guarantee of legal certainty to companies and
to their investments, can still hinder. The money laundry
regulations, for example, oblige all contracting or advising
parties to identify in a very detailed way the individuals
and companies involved in an operation and the property
of the final shareholders when the parties involved are
companies. Sometimes the information required is hard
to get, says Ángel Valdés, Head of EU and Competition
Law at Lupicinio Abogados International Attorneys, and
dealing with it delays operations.
EU Merger Control Regulation also has some undesired
effects in transactions carried out in non-EU countries. As
thresholds are exclusively based on the turnover of the
undertakings concerned, transactions carried out by two or
more large EU companies in, for instance, Asia or America,
usually also require EU clearance. This gives rise to
hindering the capability of EU companies to invest abroad,
says Antonio Martínez Sánchez, Competition and Antitrust
Partner at Allen & Overy. “In most cases, such obstacle
does not seem necessary to guarantee free competition.”
In the end, one needs to look at the bigger picture,
says Rui Souto, Senior Asssociate in Commercial and
Competition at Pedro Raposo & Associados, and
understand that EU Competition rules seek competition
and economic efficiency and the avoidance of artificial
barriers to the entry of new players in the market caused
by other market players, monopolies and/or oligopolies.
In Portugal in particular, a big issue revolves around
Pérez-Abad, Head of EU & Competition at
Eversheds Nicea, as well as to provide them
with substantive competition guidelines and
seminars.
In Portugal, clients need for advice
ranges from the analysis of restrictive
practices, to vertical agreements and their
compliance with EU Law, says Patrícia
Fragoso Martins, Head of EU & Competition
at Campos Ferreira Sá Carneiro &
Associados, as well as the assessment of
concentrations for purposes of notification
to the PCA.
In Spain, the key concern continues to
be the fight against cartels. But a noteworthy
development is that some clients have
sought advice over the last year in relation
to the Competition Authority’s advocacy
function, says Pedro Suárez, a Competition
and Distribution Partner at Ramón y Cajal
Abogados. “Reports issued by the Authority
in relation to sectors or proposed legislation
are more and more influential, which
explains why companies seek to influence
the position of the Authority in relation to
issues that affect their bus