EU & Competition Annual Report
whether the country has the adequate incentives that allow
companies to be competitive and compliant with corporate
regulations. “But I understand that the Government and
regulators are doing their best to modulate the existing
conditions and mechanisms to improve such incentives
and give objective perspectives, especially to investors
in general,” says Armando Martins Ferreira, Head of
Competition, Regulatory and EU at Abreu Advogados.
“There are constraints impeding competition, everyone
could point out an extensive list – we need more
transparency and effective accountability.”
The fight goes on
Spain’s Super Regulator is going to be the key focus for
the year ahead, say lawyers. The CNC accumulated a
great deal of goodwill and was highly recognised, with a
reputation as one of the world’s most efficient competition
authorities, and it will be a challenge for the CNMC
to sustain that level of respect, says Folguera at Uría
Menéndez. “But there is a solid base from which to move
forwards, with good regulation, competent team of civil
servants, independent and hard-working judges, good
lawyers and economists and continuity in the body in
charge of the cases.”
While the introduction by the Portuguese Government
of a much more enforcement friendly framework, after an
extensive public debate, has made a world of difference
to the competition environment, says Anastácio at SRS
Advogados. And the way the new Competition Law was
adopted, with a public consultation process involving
different stakeholders, is a very positive sign of a new
attitude towards the promotion of a competition culture,
adds Botelho Moniz at MLGTS.
“But it is only once we see stiff sanctions being
applied that we should really see big changes in the
competition environment and attitude in Portugal,” says
Carlos Pinto Correia, Head of Competition & Antitrust at
Linklaters, Lisbon.
“We need to be sensible in relation to enforcement
within the limits of reason, as the current Law sometimes
allows us to go beyond what is legal or constitutional,”
adds Miguel Gorjão-Henriques, Head of EU & Competition
Partner at Sérvulo & Associados. “But it is a great basis for
the development of a competition culture in Portugal.”
Competition is most definitely high on agendas around
the EU, with the Commission continuing to clamp down
on anti-competitive behaviour say lawyers, and this is a
fight that shows no signs of abating. A competition culture
is truly beginning to flourish and with it this increasingly
important practice area.
Enforcing a new regime
Mário Marques Mendes
Se ha producido un
cambio en el régimen de
competencia de Portugal,
comenta Mário Marques
Mendes de Marques
Mendes & Associados.
Una nueva ley y el cambio
en el equipo regulador
ha provocado una
modificación en la forma
de aplicar la norma y en la
actitud de la autoridad.
It has been ‘all-change’ in Portugal’s
competition regime, says Mário Marques
Mendes, Founding Partner of Marques
Mendes & Associados. A new law and
personnel change at the Portuguese
Competition Authority (PCA) have seen a
revamp in enforcement attitudes. Professor
António Ferreira Gomes, former Head of
the PCA’s Merger Control Department,
was also recently appointed as the
new President. And the combination is
expected to lead to a fresh approach to
enforcement.
“The law strengthens the investigations
remit at the PCA,” Marques Mendes
says. “It has more powers to carry out
searches and serve orders notably to bring
it in-line with EU enforcement rules.
Other new powers allow it to investigate
the residences and domiciles of directors
and employees and, while guaranteeing
the defence rights of the party under
investigation, utilise evidence that may
contain sensitive business secrets.”
The Competition Act paves the way
46 • IBERIAN LAWYER • November / December 2013
for the authority to establish priorities
and specific targets for competition
enforcement. “Cartels are on the radar
and Gomes has created the first, dedicated
PCA cartel unit,” Marques Mendes
explains. Leniency, which is now dealt
with in the Act itself, and under which
immunity from fines or reduction of fines
may be granted, is something that Gomes
has also often highlighted, he notes.
In this regard, the new proposal for
a Damages Directive for Competition
Infringements may be cause for concern,
says Marques Mendes. “While it adopts
a number of welcomed measures to
facilitate damages actions, it may fall
short of the stated purpose of not
reducing the incentives for companies to
cooperate with competition authorities.”
The fact that only leniency corporate
statements receive full protection
regarding disclosure of evidence from the
file of a competition authority, he adds,
ma