Amendment to restrictive trade practices regime03 September, 2019
Decree-Law 128/2019 amends the restrictive trade practices regime, approved by Decree-Law 166/2013, of 27 December. The restrictive trade practices regime is intended to ensure transparency and balance in trade practices. It is applicable to all purchases and services that are not services of general economic interest (for instance, energy supply) or that are not subject to special sectoral regulation (for instance, health care services).
Under the restrictive trade practices regime, restrictive or abusive trade practices are conducts contrary to fair trading, which may adversely affect the transparency and the balance of negotiating positions between economic operators, such as (i) where a company offers, in relation to another company, prices, conditions of sale or payment, which require the granting of a benefit not proportional to the transaction in question, or to the value of the services provided, (ii) where a company imposes unilaterally defined conditions on the other in its business relationship or (iii) where a company sells goods to the consumer or to another company at a value lower than the price at which they were purchased, deducting all the discounts and payments received.
According to the restrictive trade practices regime, the following conducts are not allowed:
- Sell at a loss (one cannot sell under the buying price plus taxes and transport charges);
- Block a supplier from selling to third parties at a lower price;
- Unilaterally impose a promotion (or offer financial compensation for a promotion);
- Retroactively change the conditions offered in supply contracts;
- Unilaterally impose the anticipation of a contract;
- As regards to micro and small companies, to unilaterally impose payments (i) for failure to meet buyer expectations of volume or value of sales, (ii) for transportation or storage costs after the delivery, (iii) as a condition for starting a business relationship or (iv) as a compensation for costs arising from a consumer complaint (except where such complaint is attributable to the seller).
With the said introduced amendment, the restrictive trade practices regime is now applicable to all trade practices that take place in Portugal and not only to those between Portuguese companies or branches.
Besides that, one shall emphasize the following amendments:
- Negotiation and business documents (supply contracts, price lists, conditions of sale) shall be written and maintained for a 3-year period;
- The deduction by a company of amounts due for the supply of goods or services from the amounts invoiced by a company in relation to another company shall be prohibited, if the reasons to which they relate are not properly disclosed and the other party gives an adverse and reasoned opinion within a period of 25 days;
- Business practice consisting of providing for exorbitant contractual penalties in relation to general contractual clauses, as well as for compensatory measures that are not effective and proportional, is prohibited, namely the issuance of credit and debit notes in a period longer than three months from the date of the invoice to which they refer.
The failure to comply with the rules of the restrictive trade practices regime is an administrative offense punishable with penalties that vary according to the quality of the concerned entity, but that may reach € 2.500.000 for big companies.
Nuno Nogueira Pinto