Homer, Odysseus to Polyphemus:
‘You have Nobody to thank for your troubles — nobody but yourself, that is.’
The aim of this Long-Read is to present to you the first chapter of the Portuguese consumer antitrust enforcement tale. Please be aware that this odyssey has just started, and the legal community are now facing the first reactions of the courts, consumers and media. By now, in our view, it already feels, if you allow us the metaphor, like Odysseus in the cave of the cyclops. This is just the beginning of a long legal trip with new procedural and material scenarios that will mark the future of access to justice for consumers in Europe in the aftermath of the transposition of the Representative Actions Directive and during the rise of private antitrust enforcement in Europe. In Portugal, since 2020, over a hundred popular actions have been brought by various consumer protection organisations. Some of the said actions have been engaged with the support of third-party funding, others with no financial support at all. In the area of competition law, the eleven cases known until now have been filed as follow-on actions following a decision of the Portuguese competition authority or the European Commission, as stand-alone actions, or as mixed claims.
As of today, around 18 actions filed before the Courts are, fully or partially, follow-on or stand-alone actions against anticompetitive collective practices and dominant companies. Two cases (one joining 8 actions) seek access to evidence in a pre-filing phase. The cases have a different procedural status. All actions have been filed as actio popularis under the Portuguese opt-out regime. Seven cases are supported through third-party funding, as communicated to the competent courts. We will present the main developments in these cases and the potential questions that we will face in the next years.
Before we enter into the current cases, it might be worth recalling the main features of the Portuguese consumer redress ecosystem:
1. María José Azar-Baud, Professor at the University Pairs St. Saclay and Julia Suderow, lecturer at the University of Deusto, this Long Read reflects the personal opinions of the authors.
The Portuguese class action regime derives from the Portuguese Constitution that explicitly guarantees the right of actio popularis in articles 20 and 52
• The Portuguese class action regime derives from the Portuguese Constitution that explicitly guarantees the right of actio popularis in articles 20 and 52. 2
• Everyone, personally or through an association has the right of popular action including compensation, cessation, prevention, or judicial prosecution of offences concerning among others consumer rights.
• The Popular Action Act, adopted in 1983 (Lei 83/95) develops these principles into a procedure that had been rarely used until the year 2020.
• There are no major judgments about this type of claims nor about private enforcement of competition law, like in other European jurisdictions.
• This system is currently under review in the frame of the transposition of the Representative Actions Directive3 . The proposed transposition into national law is expected by the end of 2023.
2. Article 52(3) of the Constitution reads as follows:
‘Everyone is granted, personally or through associations purporting to defend the interests in question, the right of popular action under the terms set forth in the law, including the right to seek compensation for the aggrieved person or persons, including to:
a) Promote the prevention, cessation or judicial prosecution of offences against public health, consumer rights, the quality of life or the preservation of the environment and the cultural heritage.
b) Ensure the defence of State, autonomous regions and municipalities’ property”.
Article 52(3) of the Constitution was implemented by:
a) a general regime, set out in Law 83/95 (‘Popular Action Act’, or ‘PAA’);
b) restatements of the basic right and special regimes, including:
(i) civil procedure: Articles 31 and 303 of the Code of Civil Procedure and Article 4(1) of the Procedural Costs Regulation;
(ii) antitrust: Article 19 of the Private Enforcement Act;
(iii) securities: articles 31 and 32 of the Securities Code;
(iv) standard contractual terms: Articles 26 and 29 of Decree-Law 446/85;
(v) consumer protection: Articles 10 to 13, 17 and 18(1)(l) of the Consumer Protection Act;
(vi) unfair commercial practices: Article 16 of Decree-Law 57/2008; and
(vii) environmental protection: Article 7 of Law 19/2014 and Articles 10 and 11 of Law 35/98.’
3. Directive (EU) 2020/1828 of the European Parliament and of the Council, of 25 November 2020, on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC.
The popular action allows the pursuit of multiple individual claims within single proceedings, providing that they are homogeneous in nature. Its basis means that all citizens have the right to defend collective interests before the court. In addition to the constitutional grounds, statute (the Class Action Act 83/95 of 31 August, amended by Decree-law No 214-G/2015 of 2 October) and the country’s Code of Civil Procedure (Art 31 and 303) complement this right with the corresponding procedural aspects which is further complemented or adapted for specific areas of the law.
The scope of the popular action covers the protection of collective interests in areas including public health and quality of life, consumer protection, cultural heritage and the environment. More recently, the popular action is being employed in the financial instruments sector. As an opt-out system in general, the court’s decision is binding for those with interests affected unless they have expressed their wish to be excluded. This can be done by the end of the period for collecting evidence, that is the end of the trial phase.
In the context of Competition law, the current Private Enforcement rules confirm the possibility of using the popular action to seek antitrust damages
In the context of Competition law, the current Private Enforcement rules confirm the possibility of using the popular action to seek antitrust damages5. Such actions are frequently based on decisions of the European Commission or the Portuguese Competition Authority for follow-on actions. This reduces the burden of proof on the claimants and the work of the Courts. Other specialised provisions, such as the Consumer Protection Act or the Securities Code, also contain rules on popular actions. However, practice has shown that pure followon actions are in the minority, with stand-alone and mixed claims predominating. To prevent any abuses, judicial authorities exercise supervision over the operation of popular actions.
Practice has shown that pure follow-on actions are in the minority, with standalone and mixed claims predominating. To prevent any abuses, judicial authorities exercise supervision over the operation of popular actions
Unlike the American class action regime, the provisions of popular actions do not provide for a ‘certification procedure’. Instead, the claims must firstly be declared admissible by the court, and following this, interested parties are summoned or informed via advertisements, for example. If manifestly inadmissible, the case will be dismissed. The Public Prosecutor can be consulted during this initial review and the length of the stage depends on the complexity of the case. There is then a written stage, and a preliminary hearing, where procedural points of admissibility might also be raised.
The right to initiate a popular action is broad and extends to any citizen with full political/ civil rights, associations, and foundations with statutory aims to protect the relevant interests, e.g., the consumer protection associations and municipalities
The right to initiate a popular action is broad and extends to any citizen with full political/civil rights, associations, and foundations with statutory aims to protect the relevant interests, e.g., the consumer protection associations and municipalities. Associations should not operate an economic activity and should have legal personality.
There are no specific rules regarding multi-jurisdictional litigation. In these cases, admissibility and the recognition/enforcement of popular action judgments and settlements are governed by the Code of Civil Procedure, the Brussels Ibis Regulation and International Private Law Conventions.
Under Article 2 of the Class Action Act, the categories allowed to file a claim include citizens, local authorities, associations, or foundations that have the purpose of defending certain interests (e.g., environmental or consumer protection).
5. Article 19 of Law 23/2018 of 5 June on Private Enforcement, transposing Directive 2014/104/EU, hereinafter Private Enforcement Act or PEA.
An example of specialised rules on standing is the Consumer Protection Act that also allows the Directorate General for Consumers to file a popular action for infringements of that Act. Another one is to be found in the Law on Private Enforcement of Competition Law enables associations of companies who have suffered competition law violations to file a popular action.
There is neither a minimum nor maximum number of claimants that should be included or concerned to initiate a popular action.
Citizens can claim a wide range of relief measures. They may seek injunctions and damages, for harm caused by infringements to constitutionally protected interests and homogenous individual interests, provisional measures, or a declaration by the court, even if they were not individually named. Damages for harmed diffuse (such as environmental) interests can also be claimed.
Although representative bodies can agree settlements, under Article 16 of the Class Action Act, the Public Prosecutor’s Office has the power to prevent settlements or withdrawals in a popular action if it considers those detrimental to the represented persons’ interests. Settlements must also be approved by the Court.
There is no dedicated register for popular actions, but civil actions are announced in the Citius website, a platform developed by the Portuguese Ministry of Justice, for a short initial period; likewise, consumers are notified, and the judgment is made public by ads published in newspapers.6
It is important to note that claimants are only bound by any positive decisions from the outcome of the case (negative outcomes, such as dismissal of the claim do not prevent further actions being filed, secundum eventum litis).
Once judgment is made, there is a deadline set by the court for class members to claim their share of global compensation. This right to claim is necessarily time-barred three years after the judgment awarding damages. For competition cases, any deadline to request compensation set by the court must be ‘reasonable’ per Article 19(7) of the Private Enforcement Act.
Third-party funding of popular actions is permitted. However, there are no specific regulations or laws governing this, and until recently there was a lack of any funding options for claimants. Individual consumers can benefit from (limited) legal aid if they are indigent, but such mechanisms are not available for consumers associations pursuing popular actions.
In most cases, plaintiffs in popular actions are exempted from the burden of costs, because costs rules differ from ordinary civil proceedings and if the claimant succeeds, even partially, no costs for court fees, or adverse costs are ordered under
6. See here, accessed 11 September 2023.
Portugal is currently adapting its actio popularis to the Directive 2020/1828 and aims to introduce at least one mechanism or supplement the various forms (and levels) of collective litigation throughout the EU Member States
Article 20 of the Collective Action Act. This would only be disapplied if there was bad faith found on the part of the claimant or if the claim was dismissed as manifestly unfounded. Even if unsuccessful in the case, the claimants’ costs would be minimal (lawyers’ fees are calculated separately and are limited to half the court costs). Conversely, this means that a claimant in a popular action, even if fully successful, will recover only a very small amount from the Defendant in order to pay for its legal fees.
Representative Actions Directive: Proposta de Lei n. º 92/XV/1.ª
As mentioned above, Portugal is currently adapting its actio popularis to the Directive (EU) 2020/1828 on Representative actions for the protection of the collective interests of consumers aims to introduce at least one mechanism or supplement the various forms (and levels) of collective litigation throughout the EU Member States. It is a minimum harmonisation Directive, whose requirements should have been made effective and applied by the Member States by 25 June 2023. The recent Portuguese draft to implement the Directive, draft Law No 92/XV/1.ª, brings certain amendments to the regime to comply with the EU framework and improve access to the popular action procedure in some ways, even if minor.
For example, according to the Directive, qualified entities have the legitimacy to bring representative actions. The Portuguese draft limits this to associations and foundations but maintains most of the same the requirements for legitimacy of these associations. The draft also deals with cross-border actions and citizens from other Member States, following the Directive. Additionally, the compensation scheme previously provided under the Private Enforcement Act is significantly extended. Indeed, the current art. 19(7) from the PEA allowing that claimant expenses are reimbursed from the undistributed global compensation would be applicable for regime for class actions arising out of the Representative actions implementation. Also, third party funding costs would be considered as expenses too.
The draft would introduce specific provisions on third-party funding, to make this aspect of the popular action more concrete. The draft seems to encompass all areas of the law which have so far been pursued via popular actions. The Class Action Act No 83/95 would still apply as a secondary law. But the full extent of the Directive’s effects will only be seen once it is finally transposed.
In the year 2015, the first popular action to seek compensation for consumers harmed by an antitrust infringement was filed by OdC against Sport TV.7 The case is still pending, the Lisbon Appeal Court having rejected all the Defendant’s arguments on inadmissibility, lack of legitimacy and time-barring. However, the case has not yet proceeded to the trial phase, as significant delays are being observed in the procedure concerning access to evidence. The upside of this unusual delay was that it provided valuable precedents from the Lisbon Appeal Court which could then be used in subsequent popular actions.
In the meantime, Portugal has created a specialised Competition, Regulation and Supervision Court for antitrust private enforcement actions in Santarém, that is working faster and facing interesting questions such as hybrid cases (follow-on and stand-alone), follow-on cases based on decisions of the competition authorities of other jurisdictions, passing-on damages to consumers, litigation funding, amongst others. As of today, ten antitrust popular cases (one case joining eight actions) seeking global compensation for consumers or seeking access to evidence to prepare an action for damages have been filed. Until now, neither the Competition Regulation and Supervision Court nor the public prosecutor have shown any concerns with respect to the jurisdiction in Portugal and with respect to the legal standing of the consumer associations or individuals that have filed these claims. Additionally, the Court, after consulting the public prosecutor, carries out a preliminary analysis of the claim. If the chances of success are clearly unlikely, the Court can reject the claim. This has not been the case until now. Once the claim is accepted by the Court, individuals will be notified by the court through public media.
A deeper look into the main cases8 pending before the Competition, Regulation and Supervision Court can be informative as well:
In November 2020, a consumer association filed an opt-out representative action (popular action) at the Portuguese Competition, Regulation and Supervision Court based in Santarém. The aim of this action is to obtain compensation for all Portuguese consumers who were injured by Super Bock’s anticompetitive practices, identified by the fine of the Portuguese Competition Authority of 24 July, 2019 (Decision PRC/2016/04).
According to the aforementioned decision, the anticompetitive practices consisted in the direct and indirect agreement on price and other terms and conditions applicable to the resale of the Defendant’s products by independent distributors in the HORECA channel, both at the retailer and wholesaler levels.
The private enforcement claim includes a stand-alone part related to a period under discussion in these proceedings, which is longer than the one considered in the public enforcement action. Indeed, in the view of the claimant, the practice began much earlier since Super Bock was twice fined, before, by the predecessor of the Competition Authority, for a similar Resale
7. Lisbon Judicial Court (case no. 7074/15.8T8LSB).
8. One case is omitted from this description: Ius Omnibus v Apple (iPhone) (case no. 17713/21.6T8LSB), filed before the Lisbon District Court, a case with various cause of actions aside from antitrust law, including misleading advertising and unfair commercial practices.
Price Maintenance practice, but in both cases those decisions became time-barred and did not cease within the end of the period in the Decision of the Competition Authority.
The claim is thus aimed at obtaining a declaration of the infringement of Article 101 TFEU and the corresponding provision of the Portuguese Competition Act by Super Bock, an order for the later to halt the above-described practices and the award of damages to consumers affected by these practices.
The administrative decision was already confirmed by the Competition Court at first instance. The Court upheld the amount of the fine but slightly reduced the material scope of the practice, finding that only RPM at wholesalers’ level had been proven. An appeal is pending before the Lisbon Appeal Court.
On 10 March, 2023, a ruling of the Lisbon Appeal Court about the preservation of evidence took the opportunity to clarify the new access to evidence regime of the Private Enforcement Act and the importance of combating information asymmetry and protecting the effectiveness of the victims’ right to compensation for anticompetitive practices. In short,
(i) it considered applicable the rules of access to evidence of the Private Enforcement Law and not of the Civil Procedure Code;
(ii) that these rules are procedural; they apply ratione temporis to an action such as this one (brought after the Private Enforcement Act came into force);
(iii) it makes express reference to the principle of effectiveness, stating that the purpose of Article 17 of the Private Enforcement Act is to ensure its enforcement; this article grants a wide discretion to the judge, including the possibility of ordering measures different from those requested;
(iv) it may be used to preserve any means of evidence; it may be used to obtain or preserve pre-existing documents or those created ex novo and it allows ordering the early production of any means of evidence.
Finally. If the measures ordered under Article 17 are infringed, the penalties provided for in Article 18 apply and it may even in certain cases lead to reversal of the burden of proof.
Additionally on 29 June 2023, the Court of Justice of the EU published its judgment in the referral made by the Lisbon Appeal Court concerning the appeal of the AdC’s decision (Case C-211/22).10 The key issue in this judgment was applying the law to the facts of the case, and the Court of Justice takes the opportunity to point out the aspects that need to be checked in a resale price maintenance infringement. The Competition Court already applied this legal test and criteria and confirmed the AdC’s Decision. The Court of Justice reminds the referring court of the following principles in its judgment:
• If a supplier issues recommended resale prices, monitors actual prices, and where distributors comply, there is an illegal resale maintenance agreement.
• RPM is a hardcore restriction within the meaning of the Vertical Block Exemption Regulation (‘VBER’), and it is necessary to test its compliance with Article 101 TFEU.
10. Judgment of the Court of Justice of 29 June 2023, Super Bock Bebidas (C-211/22, EU:C:2023:529).
• The possibility of the restrictive effect should be evidenced based on the formal content and purpose of the agreement, while considering the overall economic and legal context.
• The ‘rule of reason’ or any detailed balancing of pro and anticompetitive effects is not applicable to this type of restrictions.
The private enforcement case will now continue before the Court. If the claim is successful, this action will force Super Bock to pay damages at an estimated total of about 400 million EUR, granting each Portuguese consumer the right to an average compensation of 40 EUR.
Mastercard 11
In November 2020, a second opt-out representative action at the same Court, aimed at compensating all Portuguese consumers who were injured by Mastercard’s anticompetitive practices, partly identified by the European Commission in its Decisions of 2019 in AT.40049 Mastercard II was filed by a consumer association.
The action is based on two behaviours by Mastercard, identified in two decisions of the European Commission:
• Mastercard adopted network rules which made it more expensive than it should have been for Portuguese merchants to accept Mastercard and Maestro cards in domestic (Portuguese) transactions; and
• it set excessively high prices for transactions with cards issued outside the EEA.
In a first decision, of 22 January 2019 (AT.40049 Mastercard II), the European Commission fined Mastercard 507,5 million EUR. Mastercard confessed and did not appeal this decision.
As identified in this Decision of the European Commission, between 27 February 2014 and 8 December 2015, Mastercard restricted access by merchants to cross-border services in the EU for payments with Mastercard and Maestro cards, credit, and debit, for withdrawals and for card present and without present card (e.g., online) transactions. In practice, Portuguese merchants could not have access to lower prices for payment card services which were practiced in other EU Member States, and cross border competition which would have led to lower prices was eliminated.
The action is not purely follow-on because the claimant seeks to prove that Mastercard’s behaviour identified by the European Commission occurred at least since 2000. The claimant also seeks to prove that the behaviour also affected transactions with commercial cards.
In the follow-on part, this claim benefits from the irrebuttable presumption about the existence of the infringement created by the Decision of the European Commission.
In a second decision, of 29 April 2019 (same case file), the European Commission accepted the commitments proposal by Mastercard, to respond to other competitive infringements which had been identified. In this case, Mastercard set excessively high multilateral interchange fees for transactions in Portugal (in the EU) with Mastercard and Maestro cards,
11. Decision of the Portuguese Competition Court (case no. 19/20.5YQSTR).
debit, and credit, issued outside the EEA (interregional transactions), for ‘card present’ ‘card not present transactions’12. The behaviour was only terminated on 29 October 2019. The action will also seek to prove (stand-alone) that it occurred at least since 2000. And that it also affected transactions with commercial cards.
This action represents all consumers residing in Portugal. Specifically, all natural persons who lived in Portugal for at least part of the period during which the anticompetitive practices occurred (2000 to 2019).
The damage requested equals the surcharge of the card acquiring services for transactions with Mastercard cards. This surcharge was passed on to consumers along the vertical chain. The damage must be updated to consider inflation, plus interest.
The value of the compensation will depend on the scope of the anticompetitive behaviours which the Court will conclude to have been proven. The claimant considers that the behaviours in question, between 2000 and 2019, caused Portuguese consumers total damages of at least 400 million EUR – the value of the global compensation to be paid by Mastercard. On average, if’ the estimate for the global compensation made by the claimant is confirmed, each represented consumer will be entitled, on average, to 40 EUR (forty euros). These figures do not include updates due to inflation, nor legal interest until complete payment, which are to be added.
After a few procedural issues related to the notification of the claim and the preliminary hearing, the Court confirmed the admissibility of the claim and the legal standing. Now the case is proceeding to the trial phase.
Meliá 13
In July 2021, a pre-filing discovery action against the Spanish Hotel Chain Meliá was filed before the Competition Court. In this Claim, the claimant asked the Court to grant it access to documents to ascertain the Portuguese consumers’ rights to compensation. In the view of the claimant, and considering the pan European scope of the conduct, it is very likely that Portuguese consumers have been harmed by the defendant’s anticompetitive practice identified in the European Commission Decision of 21 February 2020. According to this EC Decision, Meliá infringed Article 101 TFEU in a single and continuous infringement, by concluding and/or implementing vertical contracts which differentiated between EEA-consumers based on their country of residence and thereby restricted cross border active and passive sales of hotel accommodation. After the entry into force of the transposition of the Damages Directive, access to evidence in antitrust private enforcement actions filed is regulated in articles 12 to 18 Private Enforcement Act and offers additional flexibility of the general rules. This regime complies with the requirements set out in the Damages Directive but adds a Portuguese specificity: a right and procedure for pre-trial discovery.14
In an interim decision of April 2022, the Portuguese Competition Court has confirmed its jurisdiction and the active legitimation of the consumer association representing Portuguese consumers to seek disclosure of documents necessary to determine if consumers were injured by an anticompetitive practice. It is important to highlight that the Portuguese Court
12. See, European Commission CASE AT.40049 – Mastercard II, 29.4.2019: See here.
13. Portuguese Competition Court, Ius Omnibus v Meliá Hotels International, S.A. (case no. 6-21.6YQSTR).
14. See Article 13 PEA; connected to articles 573 to 576 of the Portuguese Civil Code and articles 1045 to 1047 of the Portuguese Code of Civil Procedure
has jurisdiction based on Article 7(2) of the Brussels Ibis Regulation since the harm could have occurred in Portugal. This case shows the advantages of a centralised jurisdiction for private enforcement of antitrust law. Instead of splitting the case in the potential domiciles of the harmed parties in Portugal, as well as other jurisdictions like Spain or Germany, the discovery request and the potential claim can only be filed before one specialised court in Portugal.
On 13 July 2022, the Court of Appeal dismissed the appeal of the defendants, confirming the First Instance’s Decision setting an important precedent on international jurisdiction under Brussels Regulation for antitrust pre-filing discovery actions and for class actions.
The Competition Court has issued its ruling, granting the claimant access to almost all the documents requested. The court’s ruling opens the door to a first case in Portugal where a company may be required to provide access to means of evidence necessary to prepare an action for damages. In this ruling we can find the following good news for collective redress in Portugal:
This regime complies with the requirements set out in the Damages Directive but adds a Portuguese specificity: a right and procedure for pre-trial discovery
• confirmation that the claimant in a popular action is exempt from court costs in incidents which it won partially.
• confirmation of the Court’s international jurisdiction for this type of pre-filing discovery claim, but in so doing it also sets precedents that confirm international jurisdiction for actions for damages, including that jurisdiction is determined by the place where the damage occurred (which is the residence of the injured persons) even in a claim filed by an association.
• clarification that opt-out representation may only be used to represent consumers resident in Portugal.
• popular actions may be used for pre-filing discovery actions, they are not limited to injunctions and actions for damages.
• Confirmation that active legitimacy to file popular actions:
· The Court rejects the argument that a minimum number of associates is required,
· the rejection of the argument of lack independent and profit motive of the association (connected to third party funding issues).
• The Court confirms the right to ask and obtain access to categories of documents, rather than having to request and identify specific documents (in contexts of information asymmetry);
• The Court confirms the duty of the defendant to justify and demonstrate confidentiality, it not being sufficient to merely claim it;
• The Court confirms that access to confidential information cannot, as a rule, harm the defendant’s legitimate interests if it is granted only to the claimant’s external legal counsel and subject to strict conditions of confidentiality and use limited to an action for damages.
The Lisbon Appeal Court has recently fully confirmed this judgement.
Comcast / Universal Studios 15
In July 2021 a bundle of eight prefilling discovery claims were filed against eight companies of the Comcast Group sanctioned by the European Commission in the Decision of 30 January 2020.16
In these claims, the claimant asked the Court to grant access to documents to ascertain the Portuguese consumers’ rights to compensation. It is very likely that Portuguese consumers have been harmed by the Defendants’ anticompetitive practices, as identified in the European Commission Decision of 30 January 2020. According to this EC Decision, the Defendant infringed Article 101 TFEU by participating in a single and continuous infringement regarding licensed movie/TV show merchandising. The infringement covered the whole EEA and consisted in the implementation and enforcement of a series of agreements and/or concerted practices restricting sales of this licensed merchandise across territories and across customer groups, both offline and online. In June 2023, the Court issued a ruling granting access to the evidence requested following the same arguments as in the Meliá case. The defendant has filed an appeal in July 2023. On matters of law, the case is different from the Meliá case on questions of private international law, as the Brussels I Bis Regulation was not applicable (but the outcome was the same).
In September 2021, a consumer association filed a strictly follow-on claim against the energy company EDP.
The defendant was fined by the AdC for abuse of dominance (Decision PRC/2016/5) that took place between the years 2009 and 2013. The Portuguese Competition Authority had concluded that during these years, EDP manipulated its offer of ‘tele regulation’, or secondary reserve services, limiting the offer from its generating units subject to the CMEC regime, to increase the offer from its units in the open market, thus being twice remunerated in excess, to the detriment of consumers. Secondary reserve, or ‘tele regulation’, is the balancing service that ensures that consumers have available on the network the electricity they require at any moment, by balancing instantaneously the offer from generating units with the demand from families and enterprises. The CMEC regime (Custos de Manutenção do Equilíbrio Contratual or the cost of maintaining the contractual equilibrium) was the mechanism created by the Portuguese government in 2004 to compensate EDP for the early termination of exclusively contracts because of liberalization of the market. This regime guarantees that the encompassed generating plants receive a guaranteed remuneration, equivalent to what they would have received under the previously in force Power Purchase Agreements (PPAs). Via anticompetitive practices, EDP simultaneously obtained
15. Portuguese Competition Court, Ius Omnibus v NBC Universal Media LLC et al (cases no. /21.4YQSTR, 8/21.2YQSTR, 9/21.0YQSTR, 10/21.4YQSTR, 11/21.2YQSTR, 12/21.0YQSTR, 13/21.9YQSTR, and 14/21.7YQSTR).
16. Decision of the European Commission of 30 January 2020, Film merchandise (case AT. 40433).
17. Portuguese Competition Court, Ius Omnibus v EDP (case no. 18/21.0YQSTR).
higher compensation payments in the context of the CMEC regime and higher revenues from the placement in the open market of reserve services from its non-CMEC generating units. This was achieved by artificially restricting supply from CMEC plants to this reserve market and transferring that supply almost exclusively to non-CMEC plants. On the one hand, the price of energy paid by consumers rose because secondary reserve became more expensive. On the other hand, the higher CMEC compensations raised the system costs included in the electricity tariffs set by the regulator and paid by consumers.
EDP Produção is, by far, the main supplier of tele regulation services in the national electricity system, as well as being the main operator with tele regulation capacity, making it an indispensable player in this market. In the face of inelastic demand, this dominant position allowed EDP Produção to influence prices in the ‘tele regulation’ market, an opportunity the firm availed itself of. The company’s defence has systematically been that it was simply taking advantage of the chances the laws presented it to maximise its profits. The AdC Decision has already been confirmed by the Competition Court. An appeal is pending before the Lisbon Appeal Court.
In this case, a public audit ordered by the Government, the AdC, and an expert appointed by the Competition Court, have already quantified one of the parts of the damage caused to consumers in about €95 million. This action is (for now) only seeking this part of the damages corresponding to the increase in retail prices, because the CMEC component of damages has been the subject of a government order meant to indirectly compensate consumers for that part (although that order is under appeal). The Court ordered the suspension of the private enforcement action until the public enforcement procedure finishes. On August 2022 the Competition Court confirmed the administrative decision and the fine of €48 million imposed to EDP. The appeal of this judgment is now pending before the Lisbon Appeal Court. In March 2023, the Lisbon Appeal Court rejected EDP’s appeal against the stay of the proceedings and recognised the importance of public enforcement cases for follow-on class actions. The main goal of this appeal was arguably to obtain a ruling from the Court as to whether public enforcement decision created an irrefutable or refutable presumption in the follow-on action, but the Court deemed this was the right time to discuss that issue.
Land Surveyors Association
In October 2021, the Portuguese Courts approved a settlement reached by a consumer association with the Land Surveyors Association after filing a claim a couple of months before. Each consumer was entitled to receive damages in the amount of 5% of the price paid for land surveying services provided over 16 years. The consumers had to present an invoice to prove that they were affected by the conduct. This is the first settlement reached in a consumer antitrust enforcement case19. By approving the settlement, the Court, and the public prosecutor implicitly confirmed the active legitimacy to pursue popular actions of the association.
18. Portuguese Competition Court, Ius Omnibus v ANT (case no. 15/21.5YQSTR).
19. <https://iusomnibus.eu/pt/ius-omnibus-v-ant-pt/> accessed 13 September 2023.
In March 2022, a new stand alone action was filed against Apple. This action is related to class actions already filed in other jurisdictions such as USA, UK and the Netherlands, which focus on the 30% commission fee on revenue from third-party app purchases made in their App stores and in-app purchases. However, the Portuguese case is framed very differently from the ones in other jurisdictions, involving a wider range of practices and framing them as infringements of both Articles 101 and 102 TFEU. The Portuguese class action encompasses all consumers resident in Portugal who use Apple devices.
The anticompetitive practices at issue are Apple’s anticompetitive agreements with app-developers and abuse of dominance, restricting competition and leading to consumers having paid and paying a surcharge (passed on them by app-developers) for the purchase of apps and in-app contents in the Apple App Store from the launch of the App Store in the year 2008 until now. This claim is aimed at obtaining a declaration of the infringement by Apple, an order to halt the above-described practices and the award of damages to consumers for the passed-on surcharge.
In July 2021, a Professor at New University of Lisbon, with the backing of law firm Hausfeld, has filed another popular action against Apple mostly overlapping with the first one. The case is partly follow-on to a decision adopted by the Dutch NCA, and some of the practices may be assessed in an investigation currently pending before the European Commission.
Since Apple’s App Store launch, consumers residing in Portugal who wish to pay for the download of an iOS app or in-app content are left with no option but to acquire such content through the Portuguese Apple App Store, including the use of this Store’s payment services. In addition, app developers are obliged to distribute their apps in and to process related payments through the Apple App Store only and are charged a 30% commission for each of said payments, which is then, at least partially, passed on to consumers.
The damage caused will be determined at a later stage according to the methods defined by the judge and after the access to the means of evidence is granted. As of today, the preliminary hearing has not taken place yet.
In this case, the judge will have to deal with several questions such as:
• Infringement of Articles 102 and 101 TFEU and private enforcement;
• The treatment of a decision of another NCA;
• Passing on to consumers in digital markets;
• Overlapping actions;
• Parallel cases in other Member States;
• Quantification of the damage and compensation after the access to evidence.
20. Ius v Apple (Case 3/22.4YQSTR)
In March 2022, parallel to the action against Apple, a consumer association filed a stand-alone case in Portugal against the parent company and Irish subsidiaries of Google for alleged antitrust infringements. The case is based on anticompetitive practices, including Google’s abuse of dominance and agreements restricting competition, which resulted in excessive commission fees on revenue from third-party app purchases and in-app purchases made in the Google Play Store. The claim seeks a declaration of the infringement, an order to halt the practices, and damages for consumers affected by the surcharges.
This action is related to class actions filed in the USA, UK, and the Netherlands, seeking compensation for damages caused to consumers and companies, with the same variation in material scope as in the Apple App case. There is some overlap between this case and a European Commission decision identifying Google’s dominant position in relevant markets and finding anticompetitive behaviour related to bundling.
The case also overlaps in part with the decision adopted by the European Commission on 18 July 2018, according to which (i) Google holds a dominant position in two of the relevant markets and (ii) one of Google’s anticompetitive behaviours (related to bundling) has already been found in breach of European Competition law (notably Article 102 TFEU). Additionally, the case may also become partly follow-on since the Commission (and the UK NCA) reportedly has opened an investigation into Google’s practice of forcing app developers to use its payment processing services.
According to the claimants, manufacturers of mobile data equipment are contractually prevented by Google from developing or contributing to the development of alternative operating systems (anti-forking). If they wish to make one of the most essential Google apps available in their equipment (such as Google Maps or YouTube), they are required to preinstall and make the whole Google apps package available (bundling).
Similarly, as in the case of Apple, App developers are obliged to distribute their apps in and to process related payments exclusively through the Google Play Store and are charged a 30% commission for each of said payments, which is then, at least partially, passed on to consumers.
Due to these conducts, consumers residing in Portugal who wish to pay for the download of an Android app or in-app content are left with no actual option but to acquire such content through the Portuguese Google App Store, including the use of this Store’s payment services, paying the inherent surcharges.
The case was filed in March 2022, and various procedural steps have been taken, including summoning the defendants, notifying consumers, and exchanging documents. In July 2022, a second claim was filed by the same university professor who filed the second action against Apple.
The damage estimation is expected to be over EUR 100 million. The quantification will take place in the trial. The main challenges of this case relate to the same questions as the Apple case.
21. Ius v Google (App) (case no. 4/22.2YQSTR).
In August 2023, a consumer association filed a stand-alone popular action against Sony. The claimant alleges that Sony created a system around PlayStation that puts it in a position of total control, and which it uses to restrict competition and to extract advantages. According to the claimant, Sony sets wholesale and retail prices for all its own and its competitors’ digital PlayStation games through its agreements with the publishers. Sony decides the price of these games for consumers and gives publishers that price minus 30%. As stated in the claim, since 29 November 2013, Sony has engaged in these practices with the effect of controlling and drastically restraining the production and distribution of digital and physical video games, add-on content, game library services and online multiplayer services. It created an artificial monopoly for the distribution of PlayStation digital content and services. It prohibits the resale of video games in digital or physical format. The system also has restrictions on cross-commerce between platforms of game contents. This popular action aims to put an end to Sony’s anticompetitive practices which significantly limited, and in some cases completely excluded, competition in several markets.
This action is related to an action filed in the UK, although the British case is exclusively focused on abuse of dominance. According to the estimations of the claimant, the restrictions imposed by Sony could have caused a harm of around €235 Million to Portuguese consumers who purchased PlayStation digital and physical games and add-on content.
While several Member States are still struggling with the transposition of the representatives’ actions Directive and are waiting for the final judgments in mass cases like the truck cartel litigation, the Portuguese Courts will have the opportunity to iron out the path for an effective consumer antitrust enforcement in Portugal. All these cases will enter in the next months in the trial phase, and we will deal with several issues for the first time in Europe. These cases will show that basic principles of European Law such as the principle of effectiveness and access to justice depend, among others, from funding and effective procedural tools such as collective opt-out systems.
While several Member States are still struggling with the transposition of the representatives’ actions Directive, the Portuguese Courts will have the opportunity to iron out the path for an effective consumer antitrust enforcement in Portugal
The Portuguese courts will also explore the access to evidence after the Damages Directive, the passing on to consumers, hybrid standalone and follow-on claims and finally the future distribution of compensations in case the claims are ultimately successful. In the meantime, all cases advance, despite all the efforts of the defendants to exhaust resources of the claimants with all types of dilatory practices.
Until now, the cyclops has not been able to distract the courts with procedural and formal arguments, and hopefully they will move soon to the merits of the cases. As you have observed, most of the actions initiated in Portugal are based on transnational infringements that affect other Member States. By now, in our view the Portuguese example confirms the conclusions of the Green and White papers of the European Commission on antitrust damages actions of the years 2005 and 2008: real enforcement of competition law will only be possible once the harmed consumers have access to the same tools as the corporations behind the anticompetitive infringements.
And maybe, decades later, at least, a small part of European Consumers, the Portuguese citizens, will obtain compensation and Odysseus and his sailors will finally reach Ithaca. Stay tuned.
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