Third lecture from the IES policy forum dedicated to National Competition Authorities

The third lecture in the IES policy forum series dedicated to National Competition Authorities saw the participation of Mr. António Ferreira Gomes, current President of the Portuguese Competition Authority, of Dr. Komninos, and of Ms. Marta Ottanelli.

After a discussion focused on the new competition law regimes of Portugal, the attention shifted to results achieved within the European Competition Network (ECN).With Reg. 1/2003, the EU adopted a decentralized system of enforcement of competition law. The new EU regime inspired national legislators: since then, as a direct consequence, national competition law has been slowly but progressively harmonizing with the EU regime.

The Portuguese competition authority (PCA) was formally created in 2003 with the mission of enforcing and promoting competition law in Portugal. The new single competition authority was granted administrative and financial autonomy together with investigative, sanctioning, supervisory and regulatory powers.

In 2012, Portugal started to reform its competition law regime with the goal of strengthening enforcement activity, reinforcing the independence of the authority and enhancing the competitiveness of the Portuguese economy.

The new competition law act is a much clearer and simpler piece of legislation. It aims to ensure more legal certainty, to strengthen the PCA’s investigation powers and to provide a greater alignment between Portuguese and European Law. Indeed, the new law introduced the possibility for parties to settle. There is no fixed reduction of the fines, and the special procedure is available for any kind of infringement. The leniency policy was also amended to bring the new system in line with the ECN’s 2012 model. The legal thresholds for mandatory prior notification of merger transactions were adjusted and a new substantive test was introduced. Lastly, a new specialized court was established; this court is more open to the jurisprudence of the ECJ and to dealing with economic evidence.

The discussion then moved to cooperation within the ECN. Over the years, national authorities have further enhanced their cooperation both during investigations and during the decision-making process. For now, cooperation mostly happens within the area of antitrust, where no waivers are necessary. Interactions during the merger assessment processes are nevertheless slowly increasing.

Since the establishment of the ECN some 10 years ago, many accomplishments have been achieved. Nonetheless, the need still exists to ensure a more coherent approach to enforcement. The need for further convergence has been recognised, especially with respect to the independence, resources, procedures, fines and leniency of competition authorities. Mr. Gomez concluded by reflecting upon the adequacy of those advocacy tools currently in development by the ECN to ensure the desirable level of effectiveness of the enforcement activities. He hinted that there may be advantages to having hard law, instead of soft legislation, to address unsolved issues.