Sustainability and Competition Global Practice Guide |
|
Portugal |
|
| (Europe) Firm Morais Leitão, Galvão Teles, Soares Da Silva & Associados Updated 06 Sep 2022 | |
| Are ESG measures/sustainability agreements included in your jurisdictional competition regime? | Not on a standalone basis. They can however be assessed as part of an ‘efficiencies defense’, both in antitrust proceedings (restrictive agreements and abuses of dominant position) and merger control. It may also be argued that ESG and sustainability-related agreements may, under certain circumstances, fall outside the scope of antitrust provisions, provided they don’t bring about competition restraints. |
| If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022? | Not in the form of regulation. There are however prospects of important developments at the European Union level (e.g., new draft guidelines for horizontal agreements) that may trigger developments in terms of ‘soft law’ and decisional practice. |
| Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct? | No. |
| Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG? | No. |
| Can parties seek specific guidance from authorities on proposed ESG initiatives? | As a general principle, antitrust laws in place in the European Union and in Portugal provide that companies should make their own self-assessment when it comes to compliance with the rules on anti-competitive agreements and practices. Still, the European Commission is able to issue informal guidance, by means of comfort letters, relating to novel questions in this field. In a competition policy brief in support of Europe’s green ambition, released last year, the European Commission mentioned that it ‘remains ready to consider requests for individual guidance letters in relation to sustainability initiatives that raise novel issues’. So this may be an option for companies seeking to decrease uncertainty around these new issues. |
| How, if at all, does your jurisdiction quantify or calculate the ESG effects? | There are no precedents in Portugal yet. Nevertheless, as stated in Q1 above ESG/sustainability effects can either be relevant to claim that (i) an agreement does not restrict competition and thus should not raise concerns (for instance, agreements that concern only internal corporate conduct, agreements creating a database containing information about sustainable suppliers or distributors or agreements relating to industry-wide or customers’ awareness campaigns); or (ii) the benefits arising from such agreements or from a particular merger outweigh their potential restrictive effects on competition. |
| What does your legal authority currently permit even if your agency is not yet active on this topic? | Please refer to the preceding questions. |
| Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description. | Not in the field of antitrust/merger law. |
| Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation? | No. |
Sustainability and Competition Global Practice Guide
Portugal
(Europe) Firm Morais Leitão, Galvão Teles, Soares Da Silva & Associados Updated 06 Sep 2022Not on a standalone basis. They can however be assessed as part of an ‘efficiencies defense’, both in antitrust proceedings (restrictive agreements and abuses of dominant position) and merger control. It may also be argued that ESG and sustainability-related agreements may, under certain circumstances, fall outside the scope of antitrust provisions, provided they don’t bring about competition restraints.
Not in the form of regulation. There are however prospects of important developments at the European Union level (e.g., new draft guidelines for horizontal agreements) that may trigger developments in terms of ‘soft law’ and decisional practice.
No.
No.
As a general principle, antitrust laws in place in the European Union and in Portugal provide that companies should make their own self-assessment when it comes to compliance with the rules on anti-competitive agreements and practices.
Still, the European Commission is able to issue informal guidance, by means of comfort letters, relating to novel questions in this field. In a competition policy brief in support of
Europe’s green ambition, released last year, the European Commission mentioned that it ‘remains ready to consider requests for individual guidance letters in relation to sustainability initiatives that raise novel issues’.
So this may be an option for companies seeking to decrease uncertainty around these new issues.
There are no precedents in Portugal yet. Nevertheless, as stated in Q1 above ESG/sustainability effects can either be relevant to claim that (i) an agreement does not restrict competition and thus should not raise concerns (for instance, agreements that concern only internal corporate conduct, agreements creating a database containing information about sustainable suppliers or distributors or agreements relating to industry-wide or customers’ awareness campaigns); or (ii) the benefits arising from such agreements or from a particular merger outweigh their potential restrictive effects on competition.
Please refer to the preceding questions.
Not in the field of antitrust/merger law.
No.