Transposition of the Damages Directive in Portugal

 

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 by Maria Barros Silva, Trainee Lawyer at SRS Advogados

Directive 2014/104/EU was finally transposed into the Portuguese legal system by Law No. 23/2018 of 5 June, which regulates the right to compensation for victims of infringements to competition law. The Damages Directive was published on 26 November 2014, having a deadline for transposition on 27 December 2016. Portugal was the last Member State to transpose the Directive, almost a year and a half after the deadline, following a call from the Commission to take the necessary steps to ensure its full implementation. Hopefully, this will avoid an infringement procedure from the Commission and any possible fines.

In essence, the content of the Law corresponds to the text of the Directive, although it does go beyond it in certain aspects, with some innovative solutions.

Firstly, the scope of the Law. It applies not only to actions for damages for infringements of European Union competition law (Articles 101 and 102 TFEU, with or without parallel application of equivalent national rules), as laid down in the Directive; but also to actions for damages based on purely national infringements, with no cross-border effects (Articles 9, 11 and 12 of the Competition Law – Law no. 19/2012, of 8 May) or corresponding legal norms in other Member States. Secondly, the law applies not only to actions for damages, but also to other claims based on infringements of competition law.
Continue reading “Transposition of the Damages Directive in Portugal”

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Passing-on of Overcharges: Will the National Courts Lead the Way Forward?

by Vírgilo Mouta Pereira, Jurist and Collaborating Member of CEDU

This article starts by presenting a description of the passing-on regime enshrined in the Damages Directive. It argues that national judges need an effective toolkit to successfully deal with issues relevant to passing-on, thereby contributing to the ultimate goal of the Damages Directive: to help citizens and undertakings to be compensated if they are victims of infringements of the EU Antitrust rules. Against this background, in the years to come, the courts of the EU Member States are expected to play a crucial role.

I – Introduction

The Directive 2014/104/EU on antitrust damages[1] (hereinafter referred to as “Damages Directive”) seeks to help citizens and undertakings to claim compensation it they are victims of a breach of the EU Antitrust rules. Infringements cause concrete harm and the Directive sets out rules to ensure that anyone who has suffered harm caused by a breach of Articles 101 or 102 TFUE can effectively exercise the right to claim full compensation for that harm[2].

Antitrust law infringements causing an overcharge, i.e. a price increase, can harm not only the direct purchasers of the affected goods or services, but also those who afterwards purchased those goods or services. Quantifying the extent to which an overcharge has been passed on is part of a broader framework: the quantification of harm in competition law. Continue reading “Passing-on of Overcharges: Will the National Courts Lead the Way Forward?”