In August 2022, Law no. 17/2022, transposed to the national legal order Directive (EU) 2019/1 of the European Parliament and of the Council, of 11 December 2018 (ECN+ Directive). As a result, the AdC must approve the necessary regulations to ensure the implementation of new guidelines on infringement procedures, including on access to the file and the protection of confidentiality in sanctioning proceedings and supervisory procedures, within two years after the entry into force of that law.

Thus, ten years after the adoption of the Guidelines on the infringement procedures concerning the application of Articles 9, 11 and 12 of Law no. 19/2012, of 8 May (Law no. 19/2012), and of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (Guidelines), the experience acquired by the AdC

in the application of Articles 4, 6 and 7 of Law no. 18/2003, of 11 June, of Articles 9, 11 and 12 of Law no. 19/2012[1], as well as of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) , and the legal changes that have been intoduced by the successive amendments to Law 19/2012 shows the need to proceed with its revision.

In this context, the draft Guidelines now in public consultation seeks to respond to these circumstances, systematising the investigation and procedural processing in the scope of procedures for practices restricting competition.

The main purpose of the Guidelines is to provide practical guidance on the conduct by the AdC of proceedings for breach of competition rules, in order to ensure greater transparency and predictability and therefore to increase the effectiveness and efficiency in the analysis and monitoring of antitrust practices, although there may be individual cases whose particularities justify an action different from that defined in these Guidelines.

The Guidelines are intended to facilitate the understanding of the procedures followed by the AdC, aiming at creating greater legal certainty for our counterparts regarding such procedures, as well as a better cooperation with the parties involved in proceedings regarding the violation of Articles 9, 11 and 12 of Law no. 19/2012 and Articles 101 and 102 of the TFEU. The Guidelines do not create or modify rights or obligations arising from Law no. 19/2012, the AdC Bylaws, or any other applicable legal provisions.

These Guidelines are structured in the following way: Section I refers to the object and purpose of the Guidelines, Section II concerns the procedure adopted by the AdC in the investigation phase of the cases, Section III is related to their instruction phase, Section IV concerns the submission of commitments to the AdC, Section V concerns the settlement procedure, Section VI concerns the publicity and access to the file Section VII concerns the publication of the AdC decisions, Section VIII concerns cooperation between the AdC and similar authorities from other EU Member States and, finally, Section IX concerns general provisions applicable to all the previous sections (namely on the electronic processing, notifications and time limits).

Additionally, it should be noted that the Guidelines incorporate specific guidance on the procedure for the identification, treatment and validation of confidentiality, resulting from the public consultation of the draft Guidelines on this topic developed in 2017 and 2018, including the various contributions received at that venue, constituting an annex.

This annex on confidentiality protection aims to clarify and increase transparency in this matter, to stabilise the criteria for assessing the confidential nature of information and to make the whole process of treating confidentiality less complex and time-consuming for the entities involved, always guaranteeing the legitimate interests in protecting confidential information.

Accordingly, the AdC, in compliance with Article 66 of Law No. 19/2012 and Article 100(1) of the Code of Administrative Procedure, submits to public consultation the draft Guidelines on the infrigement procedures concerning the application of Articles 9, 11 and 12 of Law No. 19/2012, and Articles 101 and 102 of the TFEU and invites all interested parties to send their comments thereon by 8, September 2023, to the following email address: consultapublica@concorrencia.pt.

The comments submitted must identify the interested party, as well as their contact details and the subject "Projeto de Linhas de orientação sobre a instrução de processos".

The results of the public consultation will be published on the AdC's website, whereby observations must, if applicable, be accompanied by a non-confidential version and respective justification for confidentiality, failing which they will be made public.