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Directive ECN+ and the New Age of Competition Law (Challenges and Boundaries)

BOOKS AND ACADEMIC ARTICLES 15 Jul 2020 in Revista Ordem dos Advogados, Ano 80

Miguel Gorjão-Henriques and Alberto Saavedra are the authors of the article «Directive ECN+ and the New Age of Competition Law (Challenges and Boundaries)» published in the most recent Review of the Portuguese Bar Association.

According to the authors, “the transposition of Directive (EU) 2019/1, following the model advocated by the Preliminary Draft of the Competition Authority, will imply a thorough revision of Law no. 19/2012, of May 8, which approved the Competition Law, as it has become a pretext for a global reform that goes far beyond the object to which it was directed and the constitutional constraints to which it should be subject”. The Preliminary Draft prepared by the Competition Authority which, in addition to being a regulator, is also a police officer, prosecutor/judge and now also a “legislator”, raises well-founded doubts as to its conformity with the principles of the democratic rule of law, and goes far beyond the purpose of transposing the Directive, selectively emulating EU law and calling into question the principle of equality of arms which is essential in the field of competition procedural law. In the name of efficiency, the rights of “investigated companies” are further undermined, even when the infringements at stake do not violate fundamental community values and do not constitute crimes. The expansion of search and seizure possibilities, the annulment of the constitutional protection granted by the 1976 Constitution to lawyers (with the exclusion of the professional secrecy of company lawyers), the proposed possibility of e-mail seizure or a statute of limitations that does not allow this institute to exercise its own function, are other of the many issues addressed. 

You can read the full article (in Portuguese only) here.