EU & Competition e-report

January / February 2012 • IBERIAN LAWYER • www.iberianlawyer.com 39

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IBERIAN LAWYER

EU & COMPETITION REPORT 2012Regulatory change: re-starting

Iberian competition policy

An abstract from Iberian LawyerJanuary / February 2012

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Folguera, Head of Competition at Uría Menéndez in Madrid. “In Spain, in particular, it has been announced that more stress will be put on sector enquiries aimed at promoting a high degree of competition in certain sectors.”

Trade associations have been the subject of increasing scrutiny by the CNC and many are now seeking advice even when they are not the target of an investigation.

“They want to ensure that their operations and procedures are compliant in advance of any eventual concerns. The demand for specialised cartel-related advice is therefore at this moment not only reactive but also proactive,” says Pedro Suárez, Competition Partner at Ramón y Cajal in Madrid.

M&A activity may be far off the pre-crisis peaks but merger control work does continue, note others. And in a depressed economy the CNC is devoting more resources to analyse the merits of transactions. But with a lack of finance, more companies are also looking at alternative ways of growing market share, which is also attracting closer competition analysis, says Rafael Baena, Competition Partner at Ashurst in Madrid.

“The options are consolidation, in order to produce economies of scale, or co-operating with other companies, especially clients and suppliers. Co-operation is more and more important and the authorities at both the national and EU level will have to pay more attention to vertical issues.”

Non-complianceIn Portugal, the economic environment may be even more challenging but the

For Spanish lawyers competition law is now a major area of work. The national regulator the Comisión Nacional de la Competencia (CNC) is among the most high profile of all Spain’s regulatory agencies having pursued an aggressive policy towards tackling anti-competitive behaviour.

The key issue facing clients is the risk of non-compliance in an environment where business pressures are ever-tougher, says Jaime Pérez-Bustamante, Head of Competition at Linklaters in Madrid. “In Spain, companies face a CNC with very limited discretion to reject complaints. Its agenda is often set by opportunistic complainants, rather than by a conscious effort to seek out and prioritise – or reject – cases based on the public interest and how consumers would benefit from an intervention.”

A key area of focus has been the pursuit of cartels, with companies often underestimating the risks of being involved in investigations, say lawyers. “Sometimes companies were unaware that this activity was taking place; in other cases it was not perceived as a risk. All that is now history as cartel detection has improved so much. But in this context companies that divert resources away from compliance run the risk of putting themselves in danger,” says Marcos Araujo, Head of Competition at Garrigues.

Despite the pressure on the Government to reduce public spending, the CNC looks to be providing value for money.

“As a general rule, we do not expect that the budgetary restraints will affect the resources currently in the hands of the competition authorities,” says Jaime

Regulatory change: re-starting Iberian competition policy

The economic downturn across Iberia continues to impact on the competition arena. There may be less merger control activity, but State Aid, antitrust and cartel issues remain at the top of lawyers’ agendas, especially in Spain. A major concern of lawyers in Portugal however is the draft of a new Competition Law, which will impact on policy, enforcement and judicial decision-making.

La crisis económica en la Península Ibérica sigue afectando al Derecho de la Competencia. Aunque hay menos actividad de control de concentraciones, los abogados siguen dedicando gran parte de su tiempo a las ayudas estatales, monopolios y cárteles, especialmente en España. En Portugal, sin embargo, una de las mayores preocupaciones de los abogados es el anteproyecto de la nueva Ley de Competencia, que tendrá un gran impacto en la política, el control administrativo y las decisiones judiciales.



influential energy (Comisión Nacional de Energía – CNE) and telecoms (Comisión del Mercado de las Telecomunicaciones – CMT) regulators, in regard to which is has increasing jurisdictional overlap.

“In industries such as telecoms or energy, dealing with a dual regulatory enforcement system, with sector-specific regulators on the one hand, and the CNC, on the other hand is a major challenge,” says Francisco Cantos, Head of Competition at Freshfields in Madrid.

At the same time, there are also proposals for the CNC to absorb the activities of the competition authorities of Spain’s 17 Autonomous Regions – Castilla La-Mancha having already closed its agency citing budget cuts.

While some lawyers suggest that a more joined-up approach to competition is no bad thing, many are nonetheless concerned that a “super” CNC may become increasingly creative (as well as strict) in its interpretation of competition issues. Statements have already been made to the effect that Government agencies may even face fines for facilitating cartels.

“There is a sense that the CNC is becoming obsessed and starting to see cartels everywhere,” says Jesús Alfaro, Competition Partner at CMS Albiñana y Suárez de Lezo.

The coming months will see the outcome of appeals emanating from Spain’s first cartel and leniency cases with some lawyers predicting the possibility that a number of decisions may be overturned. Nonetheless, the CNC’s aggressive approach continues, including the current focus on trade associations and the exchange of confidential information between competitors.

“In this regard, the CNC has been one of the first national authorities to apply, quite aggressively, the new EC Guidelines on Horizontal Agreements,” says Gerard Pérez Olmo, Partner at GOLD Abogados in Madrid.

Lawyers report however an apparent decrease in new leniency applications in recent months, in part because of the uncertainty surrounding earlier decisions.

“The number of leniency new investigations is not negligible, but we have not seen the wave of cases we had a couple of years ago. On the other hand, the fact that the CNC’s new President comes from the judiciary may now help reinforce the legal robustness of decisions,” says Oriol Armengol, Head of Competition at Pérez-Llorca.

The initial fervour may have subsided but companies must try to fight any temptation to relax their behaviour in this regard, believe others. “The investigative emphasis is focusing more towards preventing horizontal agreements, and this is particularly relevant as regards exchanges of sensitive information, which at the end of the day is being

competition issues being faced are different. “The main issues we face are the lack of antitrust enforcement by the national regulator, the AdC, and the potential impact on the economy of the situation facing the euro and Portugal’s position in it,” says Gonçalo Anastácio, Head of EU and Competition at SRS Advogados in Lisbon.

A recurring issue is therefore how to ensure companies comply with competition rules in a market in which the AdC is not a feared entity, say many.

“Meeting this challenge may prove increasingly more demanding as the majority of Portuguese companies are struggling with shrinking budgets including for compliance purposes,” says Ricardo Oliveira, Competition Partner at PLMJ in Lisbon.

Despite the Portuguese Government’s ongoing privatisation programme, lawyers in Portugal report a significant drop in domestic merger work. But as businesses fight for survival, and market share, competition issues may become increasingly important for those that survive, says Miguel Gorjão-Henriques, Competition Partner at Sérvulo.

“Market restructuring seems to be a key concept: it is worth noting that market attentiveness towards dominant companies’ behaviour would seem to be relevant. Although there are no positive expectations if you consider the AdC’s apparent lack of interest in competition advocacy and compliance.”

Increased powersA lack of regulatory interest is not something Spanish lawyers complain of. Indeed, all eyes are now on the CNC to see how a recent change of leadership will affect enforcement policy.

Joaquín García Bernaldo De Quirós, a career Judge, was appointed President last October following the end of Luis Berenguer’s tenure – whose own profile as a cartel buster exceeded that of his agency. García Bernaldo De Quirós’ arrival may lead to a less “results orientated” approach, suggest some, and help to improve the quality and consistency of the CNC’s legal analysis.

“We hope for more flexibility and more considered decisions. You simply cannot put forward a case before a competition authority without sound economic rationale,” says Juan Jiménez-Laiglesia, Litigation and Regulatory Partner at DLA Piper in Madrid.

Competition legislation and enforcement policy remain however in constant evolution. Spain’s Competition Act was only rewritten in 2007 yet further regulatory and structural changes have been proposed by Spain’s new Government.

“The CNC’s new President has publicly praised the accomplishments under Luis Berenguer and embraced continuity, but within the Government’s agenda is a major restructuring of sector regulators and agencies, the CNC included,” explains Ainhoa Veiga, Partner with Araoz & Rueda in Madrid.

The Government has expressed a desire to increase the CNC’s powers to coordinate and supervise the activities of other sector-specific regulatory bodies, such as the

The main issues we face are the

lack of antitrust enforcement by the

national regulator, the AdC, and the

potential impact on the economy

of the situation facing the euro and

Portugal’s position in it. .

Gonçalo Anastácio, SRS Advogados

“”



treated by the CNC as a 100 percent cartel,” says Miguel Odriozola, Competition Partner with Clifford Chance in Madrid.

Antitrust activity on the whole remains constant but merger control work has been affected by the general downturn. However with fewer cases before the CNC lawyers still express concern over the length of both pre-notification and notification procedures, even with the introduction last year of a de minimis rule exempting certain smaller transactions from seeking competition clearance.

“From a merger perspective, the main challenge continues to be diverging approaches between competition agencies around the world, both in terms of length of the authorisation procedures and on the substantive analysis,” says Cani Fernández, Head of Competition and EU at Cuatrecasas Gonçalves Pereira in Madrid.

European influenceSpain and Portugal are also inevitably affected by developments at the EU level. With lawyers highlighting the vertical and horizontal block exemptions and accompanying guidelines adopted in 2011 as containing welcome clarifications, in addition to developments on information exchange with national regulators, while looking ahead, many point to the likely adoption of the long-awaited EU directive on private damages actions.

Yet some also highlight the continuing flexibility being shown particularly in State Aid cases, as the EC continues to react to the impact of the economic downturn throughout Europe – evident not only in the substance of the cases handled, but also in a more stringent approach to timelines and review periods.

“At the EU level, the financial and economic crisis has obliged the authorities to regulate against the clock since the peak of the crisis in 2008, but also to execute and enforce competition policy in a more flexible way. This is a trend that is expected to last into 2012, at least from the enforcement side,” says Iñigo Igartua, Competition Partner at Gómez-Acebo & Pombo.

Both the EC and CNC have shown greater flexibility to accommodate procedural deadlines where transactions required early clearances due to financial or budgetary constraints, say others. “This must be recognised as a sign of greater efficiency and perhaps a more ‘market oriented’ approach by the authorities,” says Antonio Martínez, Competition Partner at Allen & Overy in Madrid.

PressurePressure from Brussels is also being felt in Portugal,

notably in the form of the commitments the Government gave to the “Troika” of the EC, ECB and IMF as a condition of its €78bn financial assistance package agreed in 2011. Included among which was reform of the court system and of the national competition regulation – with a new draft Competition Law proposed by the AdC.

“This draft was the result of a perceived insufficiency regarding the substantive tools already available to the AdC to pursue its objectives. With the enactment of a new Law,

a substantial increase in the degree and depth of public enforcement is expected, as well as a shift in policy with, for example, clearer enforcement priorities,” says Pedro Fajardo, Competition Partner with CMS Rui Pena in Lisbon.

In the Government’s public consultation period the AdC’s proposals were however strongly challenged by various parties including the Portuguese Competition Lawyer´s Association, but the draft of which is currently before the Parliament, as are proposals to create a distinct Competition Court.

“Significant legislative amendments to the Law are expected following the consultation period but we still expect that the AdC’s enforcement tools will be enhanced,” says Joaquim Caimoto Duarte, Competition Counsel at Uría Menéndez in Portugal.

Many lawyers suggest however that the major issue in Portugal is not the quality of the Competition legislation but rather the consistency of approach by the AdC. In the past two years it has issued only two negative antitrust decisions and does not make its rulings public.

“The competition authority has always desired more power, but it seems not to have used the power it already has. Ultimately the AdC has been paving the way for regulators, private parties and courts to decide what the competition policy options should be,” says Nuno Ruiz, Head of EU and Competition at Vieira de Almeida.

But while the Antitrust Division may not be highly thought of, the Merger Control and Economic Research Unit is.

“Merger control has continued on a steady path to increased predictability, transparency and swiftness. It may now be considered in line with enforcement best practice around the world,” says Oliveira at PLMJ.

Levels of antitrust enforcement activity have therefore not changed significantly in the downturn although change has been felt elsewhere. One already successful measure imposed by the Troika has been to encourage the sale by the Portuguese Government of its remaining shares in major public businesses.

“Until now there have been no significant changes in Portuguese legislation besides last year’s highly publicised elimination of the State’s ‘Golden shares’ and the other special rights it held in a number of public companies. But 2012 will bring new developments,” says Sofia Ferreira Enriquez, Competition Partner at Raposo Bernardo in Lisbon.

Persistent approachesLooking ahead therefore, lawyers in Spain predict a steady

From a merger perspective, the main

challenge continues to be diverging approaches

between competition agencies around the world,

both in terms of length of the authorisation

procedures and on the substantive analysis.

Cani Fernández,

Cuatrecasas Gonçalves Pereira

“”



increase in competition issues and the powers of the CNC, while those in Portugal see continuing uncertainty.

Spanish lawyers sense a continuing focus on cartel investigations perhaps aided by developments at the EU level, including the long-awaited Private Enforcement Directive to be approved in 2012.

Likewise, the relatively large number of appeals of CNC decisions will now begin to be decided. “It is important to note the willingness of the Audiencia Nacional to reduce the fines imposed by the CNC when the principle of proportionality has not been respected,” says Martínez at Allen & Overy.

Merger control is likely to remain at present levels, but perhaps because of the economic environment some predict this may yet mean a rise in complexity.

“The wider liquidity issues facing business may mean an increased use of the ‘failing firm’ defence. But the same environment may also ‘encourage’ businesses to engage in horizontal and vertical collaborations, with the objective of reducing their costs and commercial risks – behaviour that the CNC is determined to target,” says Javier Menor, Head of Competition at Deloitte Abogados.

On top of this, State Aid and public financing will continue to grow, say others. With the aviation sector, and particularly Authorities’ support of local airports, already prompting high-profile judicial challenges.

Private prosecutionsThe relative reluctance of the AdC to prosecute perceived cartel activity may also prompt an upturn in private

damages claims in Portugal, believe some. “If the AdC fails to enforce antitrust rules one solution

is for aggrieved parties to seek redress themselves, and we predict a rise in private enforcement claims. There will not be a flood of cases but a wave that we think will steadily grow,” says Miguel Mendes Pereira, Partner with Vieira de Almeida in Lisbon.

Essential in this is the proposed creation of the new Competition Court, adds leading competition practitioner Mario Marques Mendes. “We may have concerns over the physical location of the Court, an hour outside Lisbon, and who the actual Judges will be, but the fact that it exists is a major step forward – it helps to put competition enforcement on the map.”

Others reiterate that in the current enforcement climate the use of alternative competition remedies may increase.

“The AdC is the primary enforcement body but it is not the only one. The ability of parties to launch their own actions and the creation of a dedicated Competition Court

The number of new

leniency investigations

is not negligible, but we

have not seen the wave

of cases we had a couple

of years ago. .

Oriol Armengol, Pérez-Llorca

“”

A more hostile public law environmentThe current economic situation is seriously affecting the nature of businesses’ administrative and public law needs, say Iberian lawyers. Clients are being far more careful as regards seeking external legal advice and, at the same time, there are far fewer public projects now underway.

“The main activity we are seeing therefore is the renegotiation of existing projects facing questions over their viability or financial imbalances, as well as renegotiating with third-parties over projects,” says Lucas Osorio, Public Law Partner with Hogan Lovells in Madrid.

The critical challenge facing both the Public Administrations and private companies is greater efficiency, liquidity and reducing debt much more than developing new projects, believe many. In such a context, lawyers report more demand for sale and leaseback, public sector restructuring and privatisation advice.

“Meanwhile, private contractors want

to understand the legal implications for these quite new type of deals launched by the Public Administrations, against which we also foresee an increase in compensation claims, and an increase in sales to infrastructure funds,” suggests Martínez-Villaseñor at Garayar.

The economic situation affecting public budgets has produced a chilling effect on the volume of requests for representing public entities, says Lino Torgal, Public Law Partner at Sérvulo in Lisbon, but a thaw may yet come.

“The Memorandum of Understanding signed by Portugal establishes obligations for the State not only to privatise significant sectors of the economy but also to increase regulation – the application of these measures may yet however represent a bold and challenging flow of work to public law departments.”

Nonetheless, the severity of the economic situation affecting Portugal, and Europe as a whole, has prompted the suspension of projects including the high-speed train link between Lisbon and Madrid and the construction of Lisbon’s new international airport.

The downturn has therefore proved less dramatic for those firms with a greater focus on private clients’ needs, believe some. “Clients continue to demand

advice in several domains, including public procurement, environmental law, zoning and planning and also in the administrative courts and in arbitrations,” says Pedro Melo, Public Law Partner with PLMJ in Lisbon.

For some Portuguese firms, future public law practice growth therefore lies increasingly beyond Portugal, in Angola, Mozambique and Brazil, because of the similarity – or lack – of domestic administrative laws.

But lawyers across Iberia predict that continuing austerity budgets and measures imposed will inevitably also bring more parties into dispute with the Government and local authorities as they impact negatively on businesses current or planned operations.

“Taking into account the budgetary constraints suffered by Public Administrations, an increase in disputes is foreseeable over issues including the late payment or non-payment by public sector entities of amounts due under contractual arrangements, and administrative decisions to stop the implementation of projects already awarded to private sector under PPP schemes,” says Juan José Lavilla, Public Law Partner with Clifford Chance in Madrid.



will mean that issues are given more analysis, and if the AdC will not act the Judges will,” says Armando Martins Ferreira, Head of Competition at Abreu Advogados.

Merger control activity will though remain depressed, believe many, in part because proposed Competition Law modifications may make merger notification harder, with likely changes to market share threshold levels. Reports of potential mergers among Portugal’s banks are discounted but a number of lawyers do point to the telecoms sector as throwing up increasingly complex issues.

“Many of the competition concerns we now see have a direct connection to the economic environment: companies are concerned about the future and are either cutting down on their compliance spending or engaging in actions that

may infringe competition rules. Portugal’s new Competition Law will not cure these problems but it may make people more aware of them,” says João Paulo Teixeira de Matos, Competition and Litigation Partner at Garrigues in Lisbon.

Others remain cautiously optimistic over the Eurozone’s ability to progressively solve its debt overhang albeit any bounce in international investor confidence for both Spain and Portugal will likely be limited.

“Bearing in mind the complex perspective for 2012, we expect to maintain the level of antitrust work derived from investigations, as well as a growing number of companies implementing compliance training,” says Casto González-Páramo, Head of Competition at Hogan Lovells in Spain.

Lawyers in Portugal are looking further ahead. “The situation in Portugal is a difficult one. But while the Government’s ongoing privatisation programme is first and foremost about raising money it is also helping to liberalise the economy, and in this respect promoting a greater degree of competition between operators. Add to this clearer competition regulation and it may ultimately benefit everybody,” concludes Anastácio at SRS Advogados.

Competition issues affecting mergers have been placed in the spotlight by the European Commission’s (EC) decision to block Deutsche Börse’s takeover of NYSE Euronext, with the ruling highlighting some of the sensitivities now involved in merger control, says Pedro Callol, Head of Competition at Roca Junyent in Madrid.

“Companies looking to invest in Europe must be aware of the competition concerns with a growing issue being the role of State Aid in transactions,” he says.

Press reports have stated, for example, that Qatar Airways’ decision to pull out of the bidding for Spanish airline Spanair was due to the amount of State Aid received by the company – the rejection ultimately helping to push Spanair into insolvency.

It can be hard to find a balance, says Callol, as European State Aid rules includes exceptions to the general

principle of illegality where the company provides a service of general economic interest.

“In a sector such as banking, for example, there is a tension between the principle that banks should be accountable for their business decisions and left to fail if they make the wrong ones, with awareness that they are also vital for the healthy functioning of the economy. Allowing an institution to collapse may cause the entire financial system to fall.”

Spain’s own banking sector has undergone vast State-sanctioned restructuring, he explains. Much of this has been as facilitated by a multi-billion euro Government fund (FROB) to assist distressed banks.

“The EU and Competition angle has become crucial in M&A due diligence,” says Callol. “Acquirers need to ensure all the issues are covered. If not the danger is that the EC may step in.”

Balancing State Aid in M&A transactions

El papel del Derecho de la Competencia se está volviendo crucial en la due diligence previa a una fusión o adquisición, especialmente a la hora de explicar a las partes las consecuencias de recibir ayudas estatales, opina Pedro Callol, de Roca Junyent en Madrid.

Pedro Callol

Many of the competition concerns we now

see have a direct connection to the economic

environment: companies are concerned about the

future and are either cutting down on their compliance

spending or engaging in actions that may infringe

competition rules.

João Paulo Teixeira de Matos, Garrigues

“”



Encouraging private and State competition enforcementAn inability, or lack of willingness, by national regulators to enforce competition rules is prompting the European Commission and private parties to step inCompetition work has never been just about pushing deals past the regulator and this has never been more apparent than during the downturn, says Miguel Mendes Pereira, Competition Counsel at Vieira de Almeida & Associados in Lisbon.

M&A activity may have slumped but the scrutiny of corporations and transactions has increased. “There have been fewer than 60 EU merger clearance cases in 2011 but there has been a dramatic uptake in State Aid investigations, and in Portugal at least, an emergence of private damages claims,” he says.

Nuno Ruiz, Head of EU and Competition, adds that State Aid investigations are now a key area of activity but a lack of action from the local competition authority – Autoridade da Concorrência (AdC) – is also leading to a rise in private enforcements. “We have seen a growing number of private actions launched but few have yet reached conclusion,” he says.

The two main challenges facing such

claims are that the Commercial Judges have little experience of competition cases and that it can be difficult to establish the actual damages incurred. “The Courts are not used to assessing such damage levels and so we need to encourage a better understanding of competition principles if there is to be a culture of private enforcement, which will come with time,” he says.

Throughout Europe they report however a deepening scrutiny of cases. Indeed, in January the European Commission (EC) demanded that the Hungarian airline Malév pay back over €75m after ruling that loans made to it by the Hungarian Government equated to illegal State Aid.

Mendes Pereira believes that many more companies across Europe, including within Portugal, may yet face similar challenges. “A number of businesses – and not necessarily only `national champions´ – remain afloat thanks to State support which, although not prohibited under local law, could be ruled illegal under European Union law.”

Miguel Mendes Pereira y Nuno Ruiz, de Vieira

de Almeida, observan un descenso en los casos de

control de concentraciones a la vez que aumentan

las investigaciones por ayudas estatales

y aparecen demandas privadas por daños. Cada

vez hay menos fusiones & adquisiciones pero son examinadas más a fondo.

Miguel Mendes Pereira

European Commission (EC) guidelines intended to toughen up the enforcement of anti-cartel practices in 2011 may have escaped the attention of many Spanish Trade Associations but they are encouraging an increasingly strict approach by the Spanish competition authority, says Gerard Pérez Olmo, Competition Partner with GOLD Abogados in Madrid.

“The Comisión Nacional de la Competencia (CNC) was one of the first to apply the guidelines to cases involving exchanges of confidential information and has subsequently been quite aggressive in their interpretation.”

Many Associations are now finding themselves under stricter scrutiny from the CNC as regards communications between members which is increasing the chances of investigative raids and enforcement activity. “Albeit an important role of many has traditionally consisted of promoting market studies, including

comparing production and sales statistics.” The CNC increasingly believes that

this could be deemed as cartel activity even without demonstrating the existence of explicit price fixing or market sharing information between companies. “They are conducting more investigations and being more thorough and this could put many companies and trade associations in a difficult position,” says Pérez Olmo.

Very few enforcement cases have yet gone to court, so questions remain whether the judiciary will support or reject such findings. Associations and their members are inevitably looking for advice to help them clarify their positions.

“My advice is to be very cautious if you are a member of a trade organisation or even managing one,” he says. “A thorough review of all activities involving exchanges of information between members, not just current but historic information too, may be necessary in order to ensure compliance with cartel rules.”

Challenging Trade Associations

La Comisión Europea ha publicado una nueva

guía de buenas prácticas para endurecer la lucha contra los cárteles, que

el regulador español está siguiendo estrictamente

respecto a las asociaciones sectoriales,

explica Gerard Pérez Olmo de GOLD

Abogados en Madrid.

Gerard Pérez Olmo


Benefitting from Portugal’s new Competition Court The creation of a new dedicated Competition Court may significantly alter how appeals of the national competition authority are determined

Significant change is proposed to the way competition issues are determined in Portugal with the creation of a dedicated Court of First Instance, says Mário Marques Mendes, of Marques Mendes & Associados, in Lisbon.

“Traditionally the Lisbon Commercial Court had exclusive competence to decide appeals from the decisions of the Autoridade da Concorrência (AdC). But court reforms in 2008 granted this jurisdiction to the territorially competent courts, meaning that – should this have entered into full force – cases would be brought before Judges with relatively little experience of competition issues.”

The Judges in the Lisbon Commercial Court had developed increased expertise in competition cases, he says, but it soon became overburdened with other non-competition matters. And though the 2008 reform was not fully implemented, it was superseded last year by a new Act creating a new Court, dedicated to competition, regulatory and supervision matters.

Portugal está a punto de aprobar una nueva Ley de Competencia, pero también se han propuesto cambios en el reparto de casos de competencia, con la creación de una nueva Corte de Primera Instancia, explica Mário Marques Mendes, de Marques Mendes & Associados en Lisboa.

Mário Marques Mendes

Increasing budgetary pressures mean that there is a need for continued creativity among financiers, investors and concessionaires as Portugal’s Government seeks to stop, reassess and in some cases renegotiate existing contracts, says José Luís Esquível, Founding Partner of Lisbon projects boutique Esquível Advogados.

“Parties have to be aware that while many project tenders may have started, and in some cases the concrete already begun to be poured, the State can no longer afford to comply with all of its commitments and so parties to projects contracts need to consider their positions.”

Dialogue between all the signatories to an agreement is therefore essential in order to ensure that each understands the relative financial, contractual and even political pressures and risks being faced, he says.

“In such a scenario, nothing is fixed. Everything is up for negotiation or

renegotiation and this is becoming evident in the extension and revision of contract terms, time frames and even payment schedules.”

Contracts previously entered into may therefore begin to change shape, says Esquível. Parties need to pre-empt issues before they arise and to think strategically about any impact this may have on these and other operations and commitments.

“The question to be asked is, ‘what would happen if the terms of an agreement were amended?’; will it leave you in a better or worse position?” This is particularly so when it comes to planned construction or repair works, says Esquível.

“There is always the option to fight, through litigation or arbitration, but often the Administration needs help to confront and overcome issues and those parties that pro-actively present credible alternative scenarios are being perceived more favourably by the State.”

Redefining public project obligations

Los inversores portugueses se ven obligados a ser más creativos en vista de las presiones presupuestarias a raíz de la decisión del Gobierno de paralizar o renegociar los contratos vigentes, dice José Luís Esquível, de la boutique Esquível Advogados.

José Luís Esquível


“This Court will again become the exclusive forum for appeals of AdC decisions, although why it is to be located in Santarém, north of Lisbon, was never fully explained,” says Marques Mendes. “Its creation is obviously welcomed. However, the fact that it is to share competence with regulatory and supervision matters leaves room for concerns as to how each area will be handled.”

Each area raises different types of issues, questions and problems, under different legal frameworks, which necessarily require different solutions and types of approach, he says. How this will be reconciled will only be known when the Court becomes functional.

“The Court is a positive development, and will help increase the clarity of decision-making. But also required, among other things, are Judges with sufficient training to decide the legal issues and understand the economic arguments, and a body of support staff that includes experts in areas like economics and accountancy.”


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Ainhoa Veiga, Araoz & RuedaAddress: Paseo de la Castellana 164, 28046 MadridTel: + 34 91 319 02 33 Fax: + 34 91 319 13 50Email: [email protected] Web: www.araozyrueda.com Main practice areas: EU & Competition (Antitrust), M&A & Corporate, IP and Litigation

Armando Martins Ferreira, Abreu AdvogadosAddress: Avenida Das Forças Armadas 125, 12º, 1600-079 LisbonTel: + 351 21 723 18 00 Fax: + 351 21 723 18 99Email: [email protected] Web: www.abreuadvogados.com Main practice areas: Competition, Regulatory & EU, Litigation (Commercial Litigation), Corporate & Commercial (Private Equity), IP and IT

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Gerard Pérez Olmo, GOLD AbogadosAddress: Almagro 31, 3º Izq, 28010 MadridTel: + 34 91 391 10 72 Fax: + 34 91 391 53 21Email: [email protected] Web: www.goldabogados.com Main practice areas: EU & Competition, Energy, Telecoms and Public Law

Gervasio Martínez-Villaseñor, Garayar Asociados AbogadosAddress: Conde de Aranda 1, 28001 MadridTel: + 34 91 432 49 05 Fax: + 34 91 431 75 44 Email: [email protected] Web: www.garayarasociados.com Main practice areas: Administrative & Public Law, PPP/PFI & Infrastructure and Energy

Casto González-Páramo, Hogan Lovells InternationalAddress: Paseo de la Castellana 51, 6º, 28046 MadridTel: + 34 91 349 82 99 Fax: + 34 91 349 82 01Email: [email protected] Web: www.hoganlovells.com Main practice areas: Antitrust, Regulated Markets, Dominance, State Aid, Merger Control, Compliance Advice and Competition Litigation

Cani Fernández Vicién, Cuatrecasas, Gonçalves PereiraAddress: Velázquez 63, 28001 MadridTel: + 34 91 524 71 43 Fax: + 34 91 524 71 62Email: [email protected] Web: www.cuatrecasas.com Main practice areas: Merger Control, Litigation, Antitrust, Dominance, Energy, Telecoms, State Aid and EU


EE EEEE EEEEEEEEEEEE EEEEEGUIDE TO LEADING LAWYERS

Sponsored section: A selection of law firms recommended within the internationally recognised directories and / or by clients.

Gonçalo Anastácio, SRS AdvogadosAddress: Rua Dom Francisco Manuel de Melo 21, 1070-085 LisbonTel: + 351 21 313 20 80 Fax: + 351 21 313 20 01Email: [email protected] Web: www.srslegal.pt Main practice areas: Antitrust, Dominance, Merger Control, State Aid, EU and Regulatory

Iñigo Igartua Arregui, Gómez-Acebo & PomboAddress: Diagonal 640, 08017 BarcelonaTel: + 34 93 415 74 00 Fax: + 34 93 415 84 00Email: [email protected] Web: www.gomezacebo-pombo.comMain practice areas: Competition, Distribution, E-commerce, IP and Administrative Law

Javier Menor, Deloitte Abogados y Asesores TributariosAddress: Avenida Diagonal 654, 08034, BarcelonaTel: + 34 93 280 40 40 Fax: + 34 93 280 28 10Email: [email protected] Web: www.deloittelegal.com Main practice areas: Antitrust, State Aid and M&A

Joaquim Caimoto Duarte, Uría Menéndez - Proença de CarvalhoAddress: Edifício Rodrigo Uría, Rua Duque de Palmela, 23, 1250-097 LisbonTel: + 351 210 308 613 Fax: + 351 213 535 012Email: [email protected] Web: www.uria.com Main practice areas: EU and Competition

José Luís da Cruz Vilaça, PLMJAddress: Avenida Da Liberdade 224, 1250-148 LisbonTel: + 351 213 193 734 Fax: + 351 213 197 319Email: [email protected] Web: www.plmj.pt Main practice areas: EU and Competition

José Luís Esquível, Esquível AdvogadosAddress: Avenida António Augusto de Aguiar 5, 2º B, 1050-010 LisbonTel: + 351 213 845 310 Fax: + 351 213 845 319Email: [email protected] Web: www.esquivel.com.pt Main practice areas: Administrative & Public Law, Project Finance & Infrastructure, Dispute Resolution, Energy & Utilities and Environmental

Jaime Pérez Bustamante, LinklatersAddress: Zurbarán 28, 28010 MadridTel: + 34 91 399 60 00 Fax: + 34 91 399 60 01Email: [email protected] Web: www.linklaters.com Main practice areas: Merger Control, Cartels, Abuses of Dominant Position, Dawn Raids and Infringement Proceedings

Jaime Folguera, Uría MenéndezAddress: Príncipe de Vergara 187, Plaza de Rodrigo Uría, 28002 MadridTel: + 34 91 586 06 57 Fax: + 34 91 586 07 53Email: [email protected] Web: www.uria.com Main practice areas: EU & Competition and Administrative Law


GUIDE TO LEADING LAWYERSEE EEEE EEEEEEEEEEEE EEEEE

Sponsored section: A selection of law firms recommended within the internationally recognised directories and / or by clients.Sponsored section: A selection of law firms recommended within the internationally recognised directories and / or by clients.

Juan José Lavilla, Clifford ChanceAddress: Paseo de la Castellana 110, 28046 MadridTel: + 34 91 590 75 62 Fax: + 34 91 590 75 75Email: [email protected] Web: www.cliffordchance.com Main practice areas: Administrative & Public Law, Regulated Markets, State Aid, Energy, Telecoms, PPP/PFI and Infrastructures

Lucas Osorio, Hogan Lovells InternationalAddress: Paseo de la Castellana 51, 6º, 28046 MadridTel: + 34 91 349 82 99 Fax: + 34 91 349 82 01Email: [email protected] Web: www.hoganlovells.com Main practice areas: Arbitration, Administrative & Public Law, M&A & Corporate Governance, Transactions and Projects

Miguel Mendes Pereira, Vieira de Almeida & AssociadosAddress: Avenida Duarte Pacheco 26, 1070-110 LisbonTel: + 351 21 311 34 00 Fax: + 351 21 311 34 06Email: [email protected] Web: www.vda.pt Main practice areas: Competition & EU, IP, Electronic Communications and Media

Miguel Odriozola, Clifford ChanceAddress: Paseo de la Castellana 110, 28046 MadridTel: + 34 91 590 94 60 Fax: + 34 91 590 75 75Email: [email protected] Web: www.cliffordchance.com Main practice areas: EU and Competition

Miguel Troncoso Ferrer, Gómez-Acebo & PomboAddress: Avenue Louise 267, 1050 - BrusselsTel: + 32 2231 12 20 Fax: + 32 2230 80 35Email: [email protected] Web: www.gomezacebo-pombo.comMain practice areas: EU and Competition

Nuno Ruiz, Vieira de Almeida & AssociadosAddress: Avenida Duarte Pacheco 26, 1070-110 LisbonTel: + 351 21 311 34 00 Fax: + 351 21 311 34 06Email: [email protected] Web: www.vda.pt Main practice areas: Competition & EU and Economic

Miguel Gorjão-Henriques, Sérvulo & AssociadosAddress: Rua Garrett 64 1200-204 LisbonTel: + 351 21 093 30 00 Fax: + 351 21 093 30 01Email: [email protected] Web: www.servulo.com Main practice areas: Merger Control, Litigation, Antitrust, Regulated Markets, Dominance, State Aid, Energy, Telecoms, EU and SGEI - Service of General Economic Interest

Mário Marques Mendes, Marques Mendes & AssociadosAddress: Avenida Eng. Duarte Pacheco 19, 12º, 1070-100 LisbonTel: + 351 21 382 63 00 Fax: + 351 21 382 63 19Email: [email protected] Web: www.marquesmendes.com Main practice areas: EU, Antitrust, Dominance, Merger Control, State Aid, Telecoms, Litigation and Arbitration

• IBERIAN LAWYER • January / February 2012 www.iberianlawyer.com

EE EEEE EEEEEEEEEEEE EEEEEGUIDE TO LEADING LAWYERS

Sponsored section: A selection of law firms recommended within the internationally recognised directories and / or by clients.

Oriol Amengol, Pérez-LlorcaAddress: Alcalá 61, 28014 MadridTel: + 34 91 436 33 12 Fax: + 34 91 436 04 30Email: [email protected] Web: www.perezllorca.com Main practice areas: Merger Control, Litigation, Antitrust, Regulated Markets, Dominance, State Aid, Energy, Telecoms and EU

Paulo Moura Marques, PLMJAddress: Avenida Da Liberdade 224, 1250-148 LisbonTel: + 351 213 197 484 Fax: + 351 213 197 419Email: [email protected] Web: www.plmj.pt Main practice areas: Administrative & Public Law

Pedro Melo, PLMJAddress: Avenida Da Liberdade 224, 1250-148 LisbonTel: + 351 213 197 484 Fax: + 351 213 197 419Email: [email protected] Web: www.plmj.pt Main practice areas: Administrative & Public Law and Projects & Infrastructure

Pedro Suárez, Ramón y Cajal AbogadosAddress: Almagro 16-18, 28010 MadridTel: + 34 91 576 19 00 Fax: + 34 91 575 86 78Email: [email protected] Web: www.ramonycajalabogados.com Main practice areas: Merger Control, Antitrust, Regulated Markets, State Aid and EU

Ricardo Oliveira, PLMJAddress: Avenida Da Liberdade 224, 1250-148 LisbonTel: + 351 213 193 734 Fax: + 351 213 197 319Email: [email protected] Web: www.plmj.pt Main practice areas: EU and Competition

Sofia Ferreira Enriquez, Raposo BernardoAddress: Avenida Fontes Pereira de Melo, Ed. Aviz 35, 18º, 1050-118 LisbonTel: + 351 21 312 1330 Fax: + 351 21 356 2908Email: [email protected] Web: www.raposobernardo.com Main practice areas: EU & Competition, Insurance, Shipping and Civil Law

Pedro Fajardo, CMS Rui Pena ArnautAddress: Rua Sousa Martins 10, 1050-218 LisbonTel: + 351 210 958 100 Fax: + 351 210 958 155Email: [email protected] Web: www.cms-rpa.com Main practice areas: Banking & Finance and Competition

Pedro Callol García, Roca JunyentAddress: José Abascal 56, 7º, 28003 MadridTel: + 34 91 781 97 60 Fax: + 34 91 781 97 64Email: [email protected] Web: www.rocajunyent.com Main practice areas: Corporate, EU & Competition, IP, Unfair Competition and Advertising, Technology and Entertainment, UK Desk and USA Desk

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