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Published in D.R. number 252 (Series I-A) of 31 October 2002
Assembleia da República (Assembly of the Republic)
Provisions authorizing the Government, within the framework of the establishment of the Competition Authority and the approval of its Statutes, to define the judicial review rules of the decisions to be adopted concerning competition safeguard matters.
The Assembly of the Republic hereby decrees, pursuant to paragraph d) of article 161 of the Constitution, the following:
The Government is hereby granted legislative authorization, in the context of the establishment of the Competition Authority and the approval of its Statutes, to set up the appropriate judicial review mechanisms in order to ensure that the action of the Competition Authority is carried out lawfully and that the rights of the individuals are safeguarded.
The legislation to be approved pursuant to this legislative authorization has the following purpose:
a) The Competition Authority is hereby established as an independent authority, with competence to promote, support and ensure the respect for the principles of free competition and of the open market, in respect to the aims determined in paragraph e) of article 81 of the Constitution and in the Treaty establishing the European Community;
b) The Competition Authority shall be provided with legal nature and shall comprise such structure and powers as will ensure its independence;
c) The Competition Authority shall be constituted in the form of a legal person under public law, presenting an institutional nature, with its own bodies, services, staff and assets, and shall be given administrative and financial autonomy;
d) The internal organizational structure of the Competition Authority shall be based in an executive and decision-making body, the Council, which shall ensure that national and Community rules on competition are respected and which shall exercise the senior management and control of the action of the Authority;
e) The President and members of the Authority Council shall be appointed by the Government, with such appointment requirements, term of office and rules of procedure of incompatibilities and impediments as will ensure its quality and independence;
f) The Competition Authority shall be provided with a surveillance body, which shall be mainly responsible for the judicial review and economicity control of the financial issues and liquid asset management performance of the Authority;
g) The Authority shall ensure an appropriate articulation of its own activities with those of sectorial regulatory authorities, receiving from undertakings and public authorities the necessary information and cooperation for achieving its purposes;
h) The competences regarding competition issues divided at the present time between the Directorate-General for Commerce and Competition, the Competition Council and the minister responsible for the economy area shall be transferred to the Competition Authority to be established;
i) Following the establishment of the Competition Authority, the Competition Council shall cease to exist;
j) The entry into operation of the Authority, the handing-over of files and the setting of substantive and procedural time limits shall be subject to the appropriate transitional rules;
l) Appropriate judicial review mechanisms shall be put in place in order to effectively ensure that competition standards, either existing or yet to be adopted, are respected, that the action of the Competition Authority is carried out lawfully and that the rights of the individuals are safeguarded;
m) This legislation shall also set up an exceptional mechanism of extraordinary appeal of the decisions of the Authority prohibiting operations of concentration between undertakings, whereby the Government member responsible for the economy area may take into account considerations not strictly of a competitive nature in the assessment of these operations and thereby approve them, under conditions or obligations where appropriate, and where the stemming advantages of these operations in furthering the fundamental interests of national economy offset the disadvantages borne by competition;
n) Ministerial decisions adopted on the basis of the extraordinary appeal mentioned in the preceding paragraph shall also be subject to appeal to court.
1 - In order to render concrete the aims of this law, the Government is hereby granted authorization to define the appropriate mechanisms for the judicial review of the decision-making activity of the Competition Authority to be established.
2 - In line with this approach, the Government is hereby authorized, under the terms to be settled in the Statutes of the Competition Authority and in the rules of protection and safeguard of competition, to ensure the unity and specialized nature of judicial review procedures regarding competition issues, conferring jurisdiction on the Commerce Court of Lisbon to entertain proceedings at first instance concerning all decisions adopted by the Competition Authority, as well as the decisions of the Government member responsible for the economy area on the basis of the extraordinary appeal to be settled in the Statutes of the Authority.
3 - As a transitional measure, pending the entry into force of the rules establishing the procedures of law on appeals of decisions regarding operations of concentration between undertakings, the Government is hereby granted authorization to permit appeals of the mentioned decisions to administrative courts, applying the statutory system of administrative action.
This legislative authorization shall expire one year from its entry into force.
Approved on 3 October 2002. The President of the Assembly of the Republic, João Bosco Mota Amaral.
Promulgated on 16 October 2002.
Let it be published. The President of the Republic, JORGE SAMPAIO.
Counter-signed on 22 October 2002. The Prime Minister, José Manuel Durão Barroso.