Portugal

The merger control legislation comprises: the Competition Act (Law No. 19/2012, as amended), Regulation No. 1/E/2003 (filing fees), and Regulation No. 993/2021 (notification forms).

The regime is mandatory and suspensory. A standstill obligation applies until clearance is granted by the Portuguese Competition Authority (PCA).

The PCA is an independent administrative body and the sole decision-maker for merger control in Portugal. PCA decisions are subject to judicial review. An exceptional administrative appeal to the Council of Ministers exists for blocked mergers on grounds of strategic national economic interests but is rarely invoked.

The regime applies economy-wide. In regulated sectors, the PCA must consult the relevant sectoral regulator, whose opinion is non-binding — except in the media sector, where a negative opinion from Portuguese Regulatory Authority for the Media (ERC) is binding. Banking and insurance mergers require separate approval from their respective regulators.

Concentrations producing effects in Portugal may fall within the EU Merger Regulation (EUMR), granting the European Commission exclusive jurisdiction (“one-stop shop”). Referral mechanisms under Articles 4(5), 9, and 22 of the EUMR allow cases to be transferred between the Commission and the PCA.

In regulated sectors, the PCA cooperates with relevant regulators. The PCA maintains working relationships with other national competition authorities through the European Competition Network and bilateral contacts, particularly with Spanish and French authorities, and with Portuguese-speaking countries within the Community of Portuguese Language Countries.

There are no proposals for reform at present.

The trigger is a lasting change of control, as defined in Article 36 of the Competition Act, substantially mirroring the EU definition under Article 3 of the EUMR. Control means the ability to exercise decisive influence over an undertaking on a lasting basis, irrespective of the legal form.

Minority shareholdings may constitute control where they confer decisive influence. There is no fixed shareholding threshold — the PCA assesses all relevant legal and factual elements, including shareholding structure, veto and governance rights, board appointment powers, long‑term commercial arrangements, and shareholder composition.

Temporary changes of control fall outside the scope of merger control. Key criteria assessed include:

• intended duration and renewability;
• structural market effects; and
• whether the acquirer holds long-term strategic decision-making powers over the target.

A concentration may arise from: the merger of two or more previously independent undertakings; or direct or indirect acquisition of control — positive or negative, exclusive or joint — over all or part of an undertaking’s share capital or assets.

The following transaction structures are covered:

• Asset acquisitions. Caught where assets carry on economic activity independently on a stable basis and constitute an autonomous economic unit with attributable turnover.
• Contractual control. Control acquired through arrangements conferring decisive influence over a company’s corporate bodies.
• Full-function joint ventures. Creation of a joint venture performing, on a lasting basis, all functions of an autonomous economic entity.
• Options, warrants and convertible instruments. Notifiable where the instrument must be exercised in the immediate future under legally binding agreements or confers decisive influence over the target.
• Acqui-hires. Hiring key personnel may constitute a concentration if it entails transfer of control over critical target assets. No such notifications have occurred, but the PCA has stated it would consider such transactions reportable.

A joint venture constitutes a concentration where it:

• performs all functions of an independent economic entity;
• has its own management;
• has sufficient resources (personnel, capital, assets); and
• operates on a lasting basis.

Transactions between the same parties. Two or more concentrations carried out within two years between the same persons, individually not subject to notification, are deemed a single concentration where they together meet turnover thresholds. The notification obligation arises solely from turnover thresholds, with no market‑share criterion applying, per Article 38 of the Competition Act. Notification must occur before implementation of the last transaction, with the standstill obligation applying only to that final transaction.

Interrelated transactions between different parties. Where cross-conditional transactions involve different acquirers, with each party acquiring different assets, the transactions constitute separate concentrations, each independently notifiable. They qualify as a single concentration only where all interdependent steps ultimately result in the same undertaking acquiring control.

Transactions are subject to mandatory prior notification where one of the following conditions is met:

• Market share threshold. A market share of 50% or more is acquired, created, or strengthened in the national market or a substantial part thereof.
• Market share and turnover threshold. A market share of 30–50% is acquired, created, or strengthened in the national market or a substantial part thereof, provided at least two undertakings generated Portuguese turnover exceeding EUR 5 million in the previous financial year (net of directly related taxes).
• Turnover threshold. Combined Portuguese turnover exceeding EUR 100 million in the previous financial year (net of directly related taxes), provided at least two undertakings each achieved Portuguese turnover exceeding EUR 5 million.

The turnover-based thresholds are calculated as follows:

• Turnover. Value of products sold and services provided within Portuguese territory, net of taxes directly related to turnover, excluding intragroup transactions.
• Parties’ turnover. The turnover of both acquirer and target is taken into account:
  • Turnover of the Includes the combined turnover of its entire economic group — the notifying party, all directly and indirectly controlled subsidiaries, parent companies, sister companies, and jointly controlled entities.
  • Turnover of the Includes only the turnover of the business or assets being acquired and directly/indirectly controlled subsidiaries; the seller’s remaining group turnover is excluded.
  • Allocation of turnover in joint ventures. Turnover is attributed to the jointly controlling parent companies in equal parts.
• Timeframe. The relevant financial year is the most recently completed one. If a transaction occurs early in the year and audited accounts are unavailable, figures from the preceding year are used.
• Geographic allocation. Turnover is allocated to Portugal based on customer location. Exports into Portugal by a company with no Portuguese establishment are included.
• Sector-specific rules. Specific rules apply to credit institutions and financial companies (turnover replaced by income categories such as interest, fees, net financial trading income) and insurance undertakings (turnover replaced by gross premiums written by Portuguese residents).

In asset acquisitions, only the turnover attributable to the assets being transferred is considered on the seller’s side.

All thresholds are expressed in euros. Although there is no explicit statutory conversion rule, parties typically apply the ECB’s average annual exchange rate for the relevant financial year.

Market share thresholds are assessed based on PCA and European Commission decisional practice regarding market definition. A broad approach including all plausible relevant product markets is advisable. The PCA has taken jurisdiction based on markets not yet defined that pass a plausibility test (similar to a share of supply test). All relevant markets must be assessed as domestic for jurisdictional purposes, even if substantively defined as supranational.

Local nexus is assessed by Portuguese-source turnover or domestic market shares. The market‑share threshold may be met solely on target’s Portuguese market share, without local overlap. There is no foreign‑to‑foreign safe harbour; parties need not have local presence for notification to be triggered.

There are no exemptions.

Yes. Where a notifiable concentration is implemented without prior notification and clearance, the PCA may initiate ex officio proceedings, impose fines, declare the transaction null and void, and order structural measures such as de-merger. The PCA has developed an AI tool that searches newspapers and the commercial registry for possible gun-jumping infringements.

No. However, public statements calling for such powers have been made by the PCA’s President recently.

Phase I review is 30 working days; Phase II is 90 working days (60 additional working days from the Phase I review period). These deadlines may be suspended for stop-the-clock requests for information. Without a decision within these deadlines, the concentration is deemed cleared.

For unfiled notifiable mergers, the PCA may initiate ex officio proceedings upon becoming aware of implementation less than five years previously. The same review deadlines apply.

No. Notification will result in a decision of inapplicability. Pre-notification contacts are available for borderline cases (see below).

Notification is mandatory; there is no waiver procedure. Non-compliance may result in fines of up to 10% of aggregate worldwide turnover in the preceding financial year.

Yes. Transactions cannot be implemented prior to notification and before clearance is granted (whether expressly or tacitly), in Phase I or Phase II.

The PCA may, upon reasoned request, grant a derogation from the standstill obligation. The PCA balances the benefits of such waiver against its impact on competition. Derogations can include conditions to preserve competition. Derogations are exceptional and granted in limited circumstances (e.g. imminent insolvency).

Notifications are submitted by the undertaking(s) acquiring control. For sole control, the acquirer files individually. For joint control or joint venture creation, parties file jointly through a common representative. The seller contributes to preparation but does not formally submit the filing.

Yes. Filing fees paid by notifying parties are set in Regulation No. 1/E/2003:

• Phase I review (base fee):
  • EUR 7,500 where aggregate Portuguese turnover does not exceed EUR 150 million.
  • EUR 15,000 where aggregate turnover exceeds EUR 150 million but is below EUR 300 million.
  • EUR 25,000 where aggregate turnover exceeds EUR 300 million.
• Phase II review. Additional fee corresponding to 50% of the applicable Phase I fee.
• Ex officio The applicable base fee is doubled.

Triggering event. The notification obligation is triggered following conclusion of the agreement bringing about the concentration and prior to completion. For public offers, the trigger is publication of the preliminary announcement or announcement of acquisition of a controlling stake. For public procurement, notification follows the final award decision.

Filing before signing. Where parties demonstrate serious intention to conclude an agreement or public intention to launch an offer, notification may occur prior to signing.

There is no deadline for submission of a notification in Portugal.

Notifications must use the PCA-approved form in Regulation No. 993/2021, available at: https://files.dre.pt/2s/2021/12/233000000/0007800093.pdf.

In broad terms, the notification forms require:

• description of the operation;
• details of the parties and their activities;
• description of the parties’ activities;
• transaction documents;
• economic and financial structure of the transaction;
• ownership and control structure;
• information on relevant and related markets;
• efficiencies; and
• ancillary restraints.

Information required varies by procedure, with the simplified procedure requiring less extensive disclosure (see Question 4.10, below).

Notifications must be submitted electronically, in Portuguese, using the applicable form through the PCA’s platform (SNEOC). Transaction documents may be submitted in a foreign language (typically English). The PCA may require Portuguese translations, particularly for ancillary restraints provisions.

All information in the regular form must, in principle, be provided. Reasoned requests for waivers can be sought where information is not essential for competitive effects assessment. The PCA has broad discretion in granting waivers, more likely in simplified procedure cases.

A simplified notification form is available where:

• There is no horizontal overlap between the parties’ activities and no vertical or conglomerate relationships.
• For horizontal overlaps, combined market share does not exceed 20%, or exceeds 20% but not 25% with increment not exceeding 2%.
• For vertically related or neighbouring markets, individual or combined market shares at any supply/distribution level do not exceed 25%.
• For neighbouring markets, individual or combined market shares do not exceed 25%.

Pre-notification is rare; most transactions are filed without it. Pre-notification is reserved for cases involving uncertainty about notification thresholds (particularly market share interpretation) or in cases involving substantial overlaps/substantive issues.

Pre-notification discussions are voluntary, informal, and confidential. For threshold guidance, the PCA typically responds within two to three weeks, though not subject to statutory deadlines.

For cases with substantive issues, pre-notification begins with a written request containing a concise transaction description and key market and competition data, ideally accompanied by a draft notification form. Pre-notification contacts must be initiated at least 15 working days before anticipated notification.

Phase I. Thirty working days from notification taking effect. At the end of this period, the PCA will:

• clear with or without conditions;
• open an in‑depth investigation; or
• conclude it lacks jurisdiction.

Phase II. Ninety working days from notification taking effect, extendable by up to 20 working days at the notifying party’s request or agreement.

Deadlines are suspended for:

• formal information requests;
• commitment submissions (20 working days);
• preliminary hearings (minimum 10 working days, 20 if third parties admitted); and
• pending ERC opinion in media transactions.

Failure to adopt a decision within the applicable deadline results in tacit clearance.

Deadlines are calculated in working days, excluding Saturdays, Sundays, and national public holidays.

For simplified procedure cases, clearance typically takes three to four weeks from notification, extended if information requests occur. Simplified cases rarely require the full 30-day Phase I deadline. For standard-form cases, clearance usually takes 20–25 working days, though parties should expect the full Phase I period may be needed.

Concentrations must be notified after publication of the preliminary announcement of a public bid or exchange offer, or following announcement of acquisition of a controlling shareholding in a listed company.

Within five working days from notification taking effect, the PCA publishes a notice in two national newspapers, setting at least 10 working days for third-party observations (typically customers and competitors). Third parties can oppose the transaction and comment on proposed commitments. They may seek formal admission to secure procedural rights, including the right to be heard and obtain non-confidential versions of submissions and decisions.

The PCA has broad investigative powers and may issue formal information requests. Failure to respond results in fines equivalent to providing false, inaccurate, or incomplete information (see Question 7.3, below).

Requests for information (RFIs) are typically formal and suspend the review period. In non‑problematic transactions, informal clarifications may be sought without suspending the deadline.

The PCA may require disclosure of internal confidential information and is not limited in document production powers.

Access to commercially sensitive information is protected by law. The PCA publishes non-confidential versions of its decisions on its website.

Notifying parties must identify and justify confidential information and submit non‑confidential versions of notifications and annexes. This also applies to RFI responses. The notification is not published but may be made available to admitted third parties.

The PCA applies the significant impediment to effective competition (SIEC) test. Horizontal, vertical, and conglomerate effects are assessed through qualitative and quantitative analysis (including market shares, concentration indices, diversion analysis, and broader economic evidence).

Countervailing efficiencies are considered when verifiable, merger‑specific, timely, and likely passed on to consumers. The PCA treats efficiencies as mitigating elements alongside other competitive constraints (e.g. buyer power, potential competition, failing-firm defence), rather than determinative factors. Efficiencies have rarely been sufficient alone to justify unconditional clearance where concerns arose.

Phase I and Phase II decisions are preceded by preliminary hearing of notifying parties and, where applicable, third parties. The PCA may dispense with this if clearing without conditions and no third-party complainants exist.

In Phase II, the preliminary hearing must occur within 75 working days from notification taking effect, with the PCA notifying parties of a draft decision. Parties typically have 10 working days to submit observations (deadline suspended during this period).

The PCA may informally communicate concerns prior to the preliminary hearing, common in complex cases.

Parties may propose commitments at any stage, in Phase I or II. Submission suspends the deadline for 20 working days while the PCA assesses them.

The PCA rejects commitments considered purely dilatory, insufficient to address competition concerns, or of uncertain feasibility. Rejection may be challenged by complaint (not appeal).

In practice, the PCA conducts market tests before accepting commitments.

The PCA accepts structural and behavioural remedies, preferring structural measures. Remedies are assessed case by case, based on effectiveness, efficiency, and proportionality.

Completion can generally occur before full compliance with remedies, subject to safeguards. Remedy implementation typically is required following monitoring trustee appointment.

In higher‑risk cases, the PCA may require purchaser identification and approval before implementation (“upfront buyer”) or before decision (“fix-it-first”).

Remedies are enforced through PCA-determined mechanisms, including monitoring trustee appointment with reporting obligations and compliance oversight.

Breach of conditions or obligations may result in:

• ex officio investigation;
• revocation of clearance and replacement by prohibition, including measures to restore competition (asset separation, termination of control);
• nullity of related acts; and
• fines of up to 10% of turnover.

The PCA directly notifies representatives of notifying parties of the confidential and proposed non‑confidential versions of its decision.

PCA clearance decisions take immediate effect.

Clearance decisions cover ancillary restraints. The PCA assesses whether restrictions identified by parties are ancillary within the EU Notice on Ancillary Restraints and PCA’s Guidance (Linhas de Orientação).

Yes. PCA merger decisions can be appealed to the Competition Court within three months of notification of the decision.

Competition Court decisions may be appealed to the Lisbon Court of Appeal, and thereafter on points of law only to the Supreme Court of Justice. Appeals do not suspend the challenged decision.

For prohibition decisions, parties may lodge an extraordinary appeal to the Government within 30 days, requesting authorisation on grounds of fundamental national economic interests. Filing suspends the time limit for judicial challenge.

Sanctions. Failure to notify or late notification is an administrative offence punishable by fines up to 10% of worldwide turnover in the year preceding the final decision. The PCA may impose periodic penalties of up to 5% of average daily turnover per day of delay. Notification fees are doubled. Transactions implemented before clearance are deemed ineffective.

Natural persons in management positions may also be liable, with fines up to 10% of annual remuneration. Sanctions are administrative.

Maximum penalties and recent practice. The highest gun‑jumping fine was EUR 2,500,000, later reduced by court to EUR 160,000. Recent fines have ranged from EUR 35,000 to EUR 155,000. The PCA has shown increasing enforcement activity, sanctioning several cases and opening investigations, most recently via its tailored gun-jumping detection AI tool.

Enforcement against foreign undertakings. Portuguese merger control rules apply to any transaction producing effects in Portugal, including transactions involving foreign undertakings.

See above. Early implementation is an administrative offence rendering the transaction ineffective. Fines up to 10% of worldwide turnover in the financial year preceding the final decision may be imposed. The PCA may adopt interim measures, including separation of undertakings or assets and transaction reversal. Sanctions are administrative, not criminal, and may extend to natural persons.

All sanctioned gun‑jumping cases to date involved implementation prior to notification. The PCA has indicated it is reinforcing ex officio detection through enhanced data analysis and technological tools, potentially resulting in closer scrutiny during the standstill period.

Gun-jumping may arise from:

• exchange of commercially sensitive information anticipating completion;
• acquisition or holding of assets or rights conferring decisive influence; and
• de facto acquisition of decisive influence.

Integration planning prior to closing is permitted with appropriate safeguards (clean teams, data rooms, confidentiality agreements) limited to what is strictly necessary.

Providing false, inaccurate, or incomplete information in response to PCA requests is an administrative offence. The PCA may impose periodic penalties of up to 5% of average daily worldwide turnover for each day of delay. To date, no such fines have been imposed in merger cases. Penalties are administrative, not criminal.

A clearance decision based on false, inaccurate, or incomplete information may be revoked.