III. A GLIMPSE OF THE MAIN AREAS OF COMPETITION AND EXAMPLES 1. “Restrictive practices” and “abuses of dominance” 1.1. Unlawful arrangements between undertakings and decisions of associations Article 101(1) TFEU prohibits and declares “as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market”. And makes express reference in particular to those arrangements which: “ (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts”. In the same line, such prohibition is comprised in article 9(1) of the Competition Act22 but with regard to the domestic market. Notwithstanding, the established importance of tourism for the Portuguese economy and the convenience in supporting it in the aftermath of the COVID 19 pandemic led the Government to include to include in the Proposal for 2021 Budget Law (“Proposal”) submitted to the Portuguese Parliament (“Parliament”) an amendment to the CA, so as to expressly prohibit parity clauses in contractual relations between undertakings and intermediaries in digital platforms. The Government also included the proposal for amendment of two other legal frameworks: the Individual Practices Restrictive of Commerce (“Práticas Individuais Restritivas do Comércio”)23 and the General Contractual Terms States and of the EU, published in the OJ L 349, 5.12.2014, p. 1–19. In Portugal this directive was transposed by Law Nr. 23/2018, of 5 june, which amended notably the CA. 22 See above note 3. 23 Decree-Law Nr. 166/2013, of 27 december, as amended. This legal framework prohibits notably to sell at a loss, the refusal to sell, discriminatory prices or commercial conditions and abusive commercial practices. 132 MARGARIDA ROSADO DA FONSECA
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