Country Profile: Portugal

• Author: Naldini, Andrea; Pompili, Marco; Peruccacci, Eleonora
• Pages: 223-230

223

23. COUNT RY PROFI LE: PORTUGAL

23.1. Sect ion 1 - National r ules for t he evaluation of St ate aid schem es

23.1 .1 . Obligat ion or lack ther eof to evaluat e

The evaluat ion of public policies in Portugal was part icularly reinforced since the

adh esio n t o t he EEC. Fro m the n on , pu blic pol icies wh ere Euro pean fu ndin g o ccur s nee d

to b e ev aluat ed, as per the EU r ules. How ever , at the nat ional level, there is not a clear

pr erogative r egarding a mand ator y evaluation of State aid.

The Portuguese legal and institutional fram ew or k on dom estic State aid con siders, on

its art icle 65(1 ) of t he Portuguese compet ition law , that State aid is an aid gran ted by

a Member State or by any ot her public entity and t hat it “should not restr ict, dist ort or

affect in a sensible manner compet ition in the dom estic m ark et or in a subst antial part

of it .” This is in lin e wit h ar tic le 1 07( 1) of the Tr eat y on th e Fun ctio ning of t he Eu ropean

Union ( TFEU), th at states: “ save as oth erw ise p rov ided in the Treat ies, any aid grant ed

by a Mem ber State or through State r esources in any form whatsoever w hich distorts

or t hreatens to distort com pet ition by fav our ing cert ain under tak ings or th e pr oduction

of cer tain goods shall, in sof ar as it affects trad e bet ween Member St at es, be

incom patible with t he int ernal market ”.

As exp lained below, mon itor ing en tit ies do not have enf orcement pow ers, and can on ly

issue recommendations. This does not allow for an active r ole on eit her attribut ion or

evaluation of St at e aid, only being able to m onitor its im plem entation and issue

recom men dations and request inf orm ation about th e pr ocesses.

So, accordin g to the nat ional legal framework, t he m onitoring entities do not have t he

legal support or ability to scr ut inise State aid. Their role is essentially to help public

authorities that grant measures considered to be aid, to elim inat e negat ive effects on

com petition.

In short , it can be concluded that t here is not a specific legal fr am ew ork in Portu gal

regar ding State aid evaluation. This absence means t hat on ly t he St ate aid that mu st

be assessed under the EU rules are t o be evalu at ed an d that th e nat ional procedu res

on t his matter ma inly suppo rt themselv es in th e legal fram ework s deri ving f rom t he EU

and t he Commission.

23.2. Sect ion 2 - National aut horit ies r esponsible for the evaluation of St ate aid

23.2 .1 . Nation al organisat ion for Stat e aid

Competition pr act ices in th e Port uguese int er nal m arket are monitored by Autoridade

da Concor rên cia – AdC ( Com pet ition Author ity ). I ts mi ssion is to ensure the ap plication

of the rules of promotion and pr ot ection of compet it ion in the pr ivate, public,

cooper ative and social sectors, in accordan ce with th e pr inciple of market eco nom y and

free com petition, with a v iew to t he ef ficient operation of market s, t he optim um

allocat ion of resources an d the interests of consum ers, in accordan ce with its St atutes.

On the matter of Stat e aid, th ere is no need for a prior notificat ion to t he AdC, nor an

app ro val be for e t h e ai d i s en act ed. Th is me ans AdC d oes no t hav e e nfo rce me nt cap acit y.

In order t o car ry out its tasks, the AdC has sanct ioning, superv isory and regu lat ory

po wer s. Those re lat ed t o sanct ion ing ar e m ost ly re lev ant , a s, in its use , Ad C can id ent ify

and invest igate conducts that are liable to infringe nat ional an d European Union