- Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
- Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
- What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
- Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
- Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
- Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
- Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
- Are there legal developments on the horizon in relation to CCPs?
jurisdiction
1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
The Autoridade da Concorrência (“Portuguese NCA”) has not yet published specific guidelines regarding competition compliance programmes (“CCPs”).
However, companies’ CCPs may be taken into consideration by the Portuguese NCA when determining the measure of a presumably applicable fine, in the context of the legal criterion related to the behaviour of the company in eliminating restrictive practices and repairing harm caused to competition.
2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
CCPs have been attracting more attention in Portugal, with the Portuguese NCA taking them into account in various cases. CCPs can potentially represent a mitigating factor when determining fines, provided that they are robust, effectively implemented, and demonstrate a genuine commitment to preventing anticompetitive behaviour and eliminating it, in case one is detected.
For instance, in several recent hub-and-spoke cases in the retail distribution sector, the Portuguese NCA has positively assessed the existence of CCPs to the benefit of the companies. Despite this, the Portuguese NCA considered that the specific CCPs in place were not sufficient to eliminate the anticompetitive behaviours identified, nor to prove that the companies had distanced themselves from the investigated practice.
3. What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
In Portugal, when evaluating CCPs in the context of competition law infringements, the Portuguese NCA seems to value the efficiency of CCPs and the results achieved by them. In this sense, the Portuguese NCA has been focusing on whether or not the anticompetitive practices persist after the adoption of a specific CCP within a company.
In particular, the Portuguese NCA may evaluate if the existing programmes have effective influence on the anticompetitive behaviour in the sense of eliminating it, for example by encouraging the companies to distance themselves from the practice under investigation, to report it to the Portuguese NCA and/or to repair the damage caused. Thus, in the absence of a specific result leading to the elimination of the unlawful practices, mere efforts made by companies seem to be somewhat and in general overlooked by the Portuguese NCA.
4. Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
In Portugal, the Portuguese NCA considers the active role that management and employees play in preventing, detecting, reporting and remedying violations, in the sense that the involvement of these stakeholders may be seen as a reflection of the effectiveness of a CCP.
However, for a CCP to be positively assessed to the benefit of the companies, the programme in place must either be sufficient to eliminate the anticompetitive behaviours identified, or prove that, following it, the companies have distanced themselves from the anticompetitive practice (for instance, through a leniency application).
5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
As mentioned, the Portuguese NCA may value the existence of CCPs when determining the measure of a presumably applicable fine, in the context of the legal criterion related to the behaviour of the company in eliminating restrictive practices and repairing harm caused to competition. In this sense, CCPs can indeed be considered when adjusting the base amount of an applicable fine.
However, so far, there has been no significant reduction in a fine imposed on a company for an infringement of competition law due to the existence of a CCP. Generally, the arguments used by the Portuguese NCA to justify the reduced importance given to a CCP – thus not granting a reduction of the fine – are based on the fact that the specific CCP did not represent an effective influence on the elimination of the anticompetitive behaviour identified, nor proved that the companies had distanced themselves from the investigated practice.
6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
Under the Portuguese Public Contracts Code, CCPs may be used as evidence for a “self-cleaning” measure when a company is at risk of being excluded from a public procurement procedure for collusive behaviour, as long as it demonstrates the company’s suitability and good reputation for the execution of the contract and that its past behaviour does not affect its performance.
CCPs represent one of the potentially admissible measures that can be used by companies to avoid being excluded from public contracts, alongside other kinds of measures that may demonstrate that the company has, (i) compensated or taken measures to compensate for any damage caused, (ii) clarified the facts and circumstances through active collaboration with the competent authorities, or (iii) taken sufficiently concrete and adequate prevention of further offences.
7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
No additional considerations or trends.
8. Are there legal developments on the horizon in relation to CCPs?
At the moment, there are not any foreseeable developments in relation to CCPs in Portugal, at least not in the context of amendments to competition law or new guidelines from the Portuguese NCA.
