How to Enhance the Enforcement of EU Competition Law in the Absence of Harmonized Procedural Rules? The Case of the Portuguese Competition Authority

Mariana Tavares, Jun 28, 2013

In 2012 a new Portuguese competition act (Law 19/2012) was enacted and entered into force introducing changes both to the substantive and procedural aspects of the competition regime in Portugal. The reform took into account the knowledge acquired during the nine years of enforcement of the former competition law (Law 18/2003) and the latest developments in European competition law and jurisprudence.

The amendment of the competition act was one of the measures prescribed in the Memorandum of Understanding (“MoU”) between Portugal and the Commission, the European Central Bank, and the International Monetary Fund, envisaging the improvement of the speed and effectiveness of competition rules enforcement. As set out in the MoU, the new competition law should be as autonomous as possible from the Administrative Law and the Penal Procedural Law and more harmonized with the European Union competition legal framework.

The PCA’s powers of investigation were a central point of the reform, particularly the power to conduct inspections in non-business premises and to seize digital evidence and emails, as such powers were limited under the previous law. Article 18 of the Law 19/2012 establishes the “powers of inquire search and seizure” and expressly foresees the power iter alia to conduct search in non-business premises as well as to seize digital evidence. The exercise of search powers is subject to a court warrant that delimits the scope of the powers of the PCA during the inspections. As such, the power to conduct searches in general and in non-business premises in particular as well as to seize digital evidence during the searches will very much depend on the interpretation the judiciary will have on the scope of those powers.

This is a particularly sensitive issue because under the former competition act (Law 18/2003) some court warrants did not allow for the search of email boxes and the seizure of emails as the judiciary understood emails to be protected by the guarantees recognized to private correspondence. If this understanding remains under the new competition act, it will be a considerable limitation of the investigative capacity of the PCA as emails are an important communication tool in business context and a probable source of evidence for proving an infringement of competition law.

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