Opinion of the Advocate General — ECLI:EU:C:2023:153
Date: 2023-03-02
Language of the case: Portuguese
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-331/21 – 1 
Case C-331/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
26 May 2021 
Referring court:  
Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal) 
Date of the decision to refer:  
6 April 2021 
Appellants and respondents:  
Autoridade da Concorrência (Competition Authority, Portugal) 
EDP – Energias de Portugal, S.A. 
EDP Comercial – Comercialização de Energia, S.A. 
Sonae Investimentos, SGPS, S.A. 
SONAE MC – Modelo Continente SGPS 
Modelo Continente Hipermercados, S.A. 
  
Subject matter and legal basis of the request for a preliminary ruling 
In this case, the Autoridade da Concorrência (Competition Authority, Portugal; 
‘the AC’) charged EDP – Energias de Portugal, S.A., EDP Comercial – 
Comercialização de Energia, S.A., Sonae Investimentos, SGPS, S.A., SONAE 
MC – Modelo Continente SGPS and Modelo Continente Hipermercados, S.A. 
(‘the appellants’) with having committed a breach of competition law consisting 
in the offence classified in and punishable under Articles 9(1)(c) and 68(1)(a) of 
the Lei da Concorrência (Law on Competition), as amended by Lei n.º 19/2012, 
de 8 de maio (Novo Regime Jurídico da Concorrência) [Law No 19/2012 of 
8 May 2012 (New Rules of Law governing Competition); ‘the NRJC’], the latter 
article being based on and practically reproducing Article 101 of the Treaty on 
the Functioning of the European Union. The Tribunal da Concorrência, 
EN 
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Regulação e Supervisão de Santarém (Competition, Regulation and Supervision 
Court, Santarém, Portugal; ‘the TCRS’) upheld that charge. 
The AC and the TCRS were of the view that, within the framework of an 
association agreement, the appellants concluded a ‘non-competition covenant’ 
constituting an agreement restrictive of competition by object, contained in 
clauses 12(1)(a) and 12(2)(a) of that agreement, which was in force between 
5 January 2012 and 31 December 2013. Consequently, the appellants, with the 
exception of SONAE MC – Modelo Continente SGPS, S.A. (which was not fined 
because it had no turnover) were ordered to pay the following fines: EDP 
Energias de Portugal, S.A. was fined EUR 2 610 000; EDP Comercial – 
Comercialização de Energia, S.A. was fined EUR 23 220 000 euros; Sonae 
Investimentos, SGPS, S.A was fined EUR 2 520 000, and Modelo Continente 
Hipermercados, S.A. was fined EUR 6 120 000. 
Appeals against that decision have been brought both by the AC, which seeks an 
increase in the fines, and by the appellants, which claim that they have not 
committed any breach and seek a declaration to that effect. 
Questions referred for a preliminary ruling 
1. Must Article 101 TFEU, on which Article 9 of the NRJC (Law 19/2012 of 
8 May 2012) is based, be interpreted as meaning that it permits the classification 
of a non-competition clause such as those contained in clauses 12(1) and 12(2) 
(see paragraph [8 of the Brief presentation of the facts and the main proceedings]) 
of the association agreement as an agreement restrictive by object which is 
concluded between an electricity supplier and a food retailer operating 
hypermarkets and supermarkets with a view to granting to customers, who sign up 
to a given energy tariff plan made available by the electricity supplier in mainland 
Portugal and are at the same time holders of a loyalty card offered by the food 
retailer, discounts which can be used only to buy products in the outlets operated 
by that retailer or by companies linked to it, in the case where that agreement 
includes other clauses providing that its purpose is to promote the pursuit of the 
activities carried on by the participating companies (see paragraphs 2 to [7 and 16 
of the Brief presentation of the facts and the main proceedings]) and the benefits 
to consumers have been established (see [the aforementioned paragraph 16]) but 
no analysis has been carried out of the specific harmful effects which the 
aforementioned clauses 12(1) and 12(2) have on competition? 
2. May Article 101(1) TFEU be interpreted as meaning that an agreement, 
which prohibits the pursuit of certain economic activities and provides for an 
alleged sharing of markets between two undertakings, may be regarded as being 
restrictive of competition by object, in the case where it is concluded between two 
entities which do not actually or potentially compete with each other on any of the 
markets affected by that obligation, even though the markets affected by that 
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obligation may be regarded as liberalised or without insurmountable legal barriers 
to entry? 
3. May Article 101(1) TFEU be interpreted as meaning that an electricity 
supplier and a food retailer operating hypermarkets and supermarkets which have 
concluded the aforementioned agreement with each other with a view to 
promoting each other’s business activities and increasing each other’s sales (and, 
in the case of the food retailer, the sales of companies in whose capital one of its 
parent companies has a majority shareholding) must be regarded as potential 
competitors, in the case where the food retailer and the aforementioned companies 
linked to it were not engaged in the activity of electricity supplier, either on the 
geographical market in question or on any other market, at the time when the 
agreement was concluded, and it has not been shown in the proceedings that they 
intended to engage in that activity on that market or that they had taken any steps 
with a view to doing so? 
4. Does the answer to the previous question remain unchanged if another 
company in whose capital a majority interest is held by a parent company of the 
food retailer that is a party to the agreement (where neither of those two entities 
has, however, been charged or convicted by the national competition authority or 
been a party to the proceedings before this court), which did not fall within the 
subjective scope of the non-competition obligation, held a 50% interest in a third 
entity which pursued in Portugal activities in connection with the marketing of 
electricity that came to an end three and a half years prior to the conclusion of the 
agreement as a result of the dissolution of that entity? 
5. Does the answer to the previous question remain unchanged in the case 
where the retailer that is a party to the agreement produces electricity via its mini-
generation and micro-generation facilities on the roofs of its outlets, although it 
delivers all of the energy produced, at regulated prices, to the last-resort trader.  
6. Does the answer to the fourth question remain unchanged in the event that 
the retailer that is a party to the agreement, eight years prior to the date thereof, 
concluded with a third party operating as a liquid fuel distributor, for the purpose 
of granting cross-discounts, another commercial cooperation agreement (still in 
force on the date of the former agreement) relating to the purchase of those 
products and of products sold in the retailer’s hypermarkets and supermarkets, in 
the case where the undertaking that is the other party to the agreement, in addition 
to marketing liquid fuels, also markets electricity in mainland Portugal, and it has 
not been shown that, at the time when the agreement was concluded, the parties 
had any intention of extending that contract to the marketing of electricity or had 
taken any steps with a view to doing so? 
7. Does the answer to the fourth question remain the same in the event that 
another company in whose capital a majority interest is held by a parent company 
of the food retailer that is a party to the agreement (where neither of those two 
entities has, however, been charged or convicted by the national competition 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-331/21 
 
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authority or been a party to the proceedings before this court), which did not fall 
within the subjective scope of the non-competition obligation, produced electricity 
in a cogeneration facility, although it delivered all of the energy produced, at 
regulated prices, to the last-resort trader? 
8. If the foregoing questions are answered in the affirmative, must 
Article 101(1) TFEU be interpreted as meaning that a clause may be regarded as 
being restrictive by object, where it prohibits such a food retailer, during the term 
of the agreement and in the year immediately thereafter, from pursuing activities 
in connection with the marketing of electricity, either by itself or through a 
company in whose capital a majority interest is held by one of its parent 
companies, and which clause is the subject of proceedings in the territory covered 
by the agreement? 
9. Can the concept of ‘potential competitor’ for the purposes of Article 101(1) 
TFEU, Article 1(1)(c) of Commission Regulation (EU) No 330/210 of 20 April 
2010 on the application of Article 101(3) [TFEU] to categories of vertical 
agreements and concerted practices and paragraph 27 of the European 
Commission’s Guidelines on Vertical Restraints (OJ 2010 C 130, p. 1) be 
interpreted as meaning that it includes an undertaking, bound by a non-
competition clause, which is present on a product market that is completely 
separate from that of the other party to the agreement, in the case where the 
documents in the case file of the dispute brought before the national court contain 
no specific indication (such as projects, investments or other preparations) that, 
before and in the absence of that clause, the undertaking in question might enter 
the other party’s market in the short term, and it has not been shown that, before 
and in the absence of that clause, that undertaking was perceived by the other 
party to the agreement as a potential competitor on the market concerned? 
10. May Article 101(1) TFEU be interpreted as meaning that the mere fact that 
an association agreement, concluded between an undertaking engaged in the 
marketing of electricity and an undertaking engaged in the retail sale of food and 
non-food products for household consumption for the purposes of the cross-
promotion of their respective activities (in which, inter alia, the first undertaking 
grants to its customers discounts on their electricity consumption which the 
second undertaking deducts from the price of the purchases made by such 
customers in its retail outlets), contains a clause whereby both parties undertake 
not to compete with each other or to conclude similar agreements with each 
other’s competitors, means that the purpose of that clause is to restrict competition 
within the meaning of Article 101(1) TFEU, even if: 
– the temporal scope of the clause in question (one-year term of the agreement 
plus one year) coincides with the period, laid down in the same agreement, 
during which the parties are not authorised to use business secrets or know-how 
acquired in the course of implementing their association in projects with third 
parties; 
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– the geographical scope of the clause is confined to the geographical scope of 
the agreement; 
– the subjective scope of the clause is confined to the parties to the agreement, to 
undertakings in whose capital they hold a majority interest and to other 
undertakings in the same group which also own or operate retail sales outlets 
falling within the scope of that agreement; 
– the subjective scope of the clause excludes the vast majority of the companies 
belonging to the same economic group as the parties, which, in consequence, 
are not bound by the clause and may compete with the other party to the 
agreement during and after the term of that agreement; 
– the undertakings subject to the non-competition clause are present on 
completely separate product markets, and it has not been shown that, at the 
time when the agreement was concluded, they had pursued any projects or 
plans, made any investments or taken any other steps with a view to entering 
the other party’s market? 
11. Must the concept of ‘vertical agreement’ for the purposes of Article 101(1) 
TFEU, Article 1(1)(a) of Commission Regulation (EU) No 330/2010 of 20 April 
2010 on the application of Article 101(3) [TFEU] to categories of vertical 
agreements and concerted practices and paragraph 25(c) of the European 
Commission’s Guidelines on Vertical Restraints (OJ 2010 C 130, p. 1) be 
interpreted as meaning that it includes an agreement exhibiting the characteristics 
described in the foregoing questions, in which the parties are present on 
completely separate product markets and it has not been demonstrated that, prior 
to and in the absence of the agreement, they undertook any projects, investments 
or plans with a view to entering the other party’s product market, but in which 
each party, for the purposes of that agreement, makes its commercial networks, 
sales teams and know-how available to the other party in order to promote, secure 
and grow the other party’s customer base and business? 
Provisions of European Union law relied on  
Treaty on the Functioning of the European Union: Article 101. 
Commission Regulation (EU) No 330/2010 of 20 April 2019 on the application of 
Article 101(3) [TFEU] to categories of vertical agreements and concerted 
practices (OJ 2010 L 102, p. 1): Article 1. 
Commission Notice – Guidelines on Vertical Restraints (SEC/2010/0411 final): 
paragraphs 25 and 27. 
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Provisions of national law relied on 
Lei n.º 19/2012, de 8 de maio, que aprova o novo regime jurídico da concorrência, 
revogando as Leis n.os 18/2003, de 11 de junho, e 39/2006, de 25 de agosto, e 
procede à segunda alteração à Lei n.º 2/99, de 13 de janeiro [Law No 19/2012 of 
8 May 2012 laying down new rules of law governing competition and repealing 
Law No 18/2003 of 11 June 2003 and Law No 39/2006 of 25 August 2006 and 
amending for the second time Law No 2/99 of 13 January 1999: Article 9. 
Article 9(1): 
‘Agreements between undertakings, concerted practices between undertakings and 
decisions by associations of undertakings which have as their object or effect the 
prevention, distortion or appreciable restriction of competition on part or the 
whole of the national market shall be prohibited […]’ 
Decreto-Lei n.º 178/86, de 3 de julho, que regulamenta o contrato de agência ou 
representação comercial (Decree-Law No 178/86 of 3 July 1986 regulating agency 
or comercial representation contracts): Articles 4 and 9. 
Article 4 
‘Within the same area or the same circle of customers, the agent may not engage 
in activities which compete with those pursued by the other party and the latter 
may not use other agents for the relevant sector of activity, unless otherwise 
agreed in writing’. 
Article 9 
‘1 – The agreement laying the obligation on the agent, following the termination 
of the contract, not to engage in activities that compete with those pursued by the 
other party must be recorded in writing. 
2 – The non-competition obligation may be laid down only for a maximum period 
of two years and shall be confined to the area or to the circle of customers 
entrusted to the agent’. 
Brief presentation of the facts and the main proceedings 
1 On 5 January 2012, EDP Comercial y Modelo Continente Hipermercados 
(‘MCH’) concluded the association agreement laying down the terms and 
conditions relating to the ‘Plano EDP Continente’ (EDP Continente Scheme). 
2 Clause 2(1) of the association agreement provided that its purpose and scope 
were: 
‘Promote the pursuit of activities in connection with the marketing of electricity 
on a free basis by EDP Comercial and the retail distribution of food and non-food 
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products by Modelo Continente in “Continente”, “Continente Modelo” and 
“Continente Bom Dia” hypermarkets and supermarkets and in the retail outlets 
operated by other companies in which Sonae Investimentos, SGPS, S.A. has 
holdings: in particular, in addition to Modelo Continente, the outlets Well’s and 
Bom Bocado, and, where appropriate, in retail outlets operated by other (current 
and future) brands, hereinafter referred to as “outlets”’. 
3 The association agreement was concluded for a period of one year and its expiry 
date was set at 31 December 2012, although the period during which consumers 
could sign up to the EDP Continente Scheme ran only from 9 January to 4 March 
2012. 
4 From a commercial point of view, the EDP Continente Scheme involved the grant 
of discounts exclusively to holders of the ‘Cartão Continente’ (‘Continente Card’), 
a discount card owned by MCH and registered under its loyalty programme. 
5 In addition to holding a ‘Continente Card’, customers wishing to sign up to the 
EDP Continente Scheme had to conclude with EDP Comercial a contract for the 
supply of low-voltage electricity on the deregulated market in Portugal.  
6 Membership of the EDP Continente Scheme entitled customers to a 10% discount 
on their consumption of electricity and contracted power in the month or months 
immediately prior to the month in which the relevant discount voucher was issued. 
7 The discount vouchers were loaded onto the Continente Card and were activated 
when purchases were made in retail outlets. 
8 Clause 12, entitled ‘Exclusivity’», of the association agreement is worded as 
follows: 
‘12(1) During the term of this agreement and for a period of 1 (one) year after its 
expiry, Modelo Continente undertakes not to: 
a. engage, directly or through companies in the capital of which Sonae 
Investimentos, SGPS, S.A. has a majority shareholding, in the activity of 
marketing electricity and natural gas in mainland Portugal; 
b. negotiate or conclude with any electricity or natural gas supplier that is not an 
entity exercising control over or affiliated to EDP Comercial […] association 
agreements, joint ventures, agreements in principle, advertising campaigns or 
other instruments which have the object or effect of granting discounts or other 
monetary benefits relating to electricity or natural gas, irrespective of the terms 
thereof. 
12(2) During the term of this agreement and for a period of 1 (one) year after its 
expiry, EDP Comercial undertakes not to: 
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a. engage, either directly or via companies in the capital of which EDP Comercial 
has a majority shareholding, in the activity of the retail distribution of food 
products in mainland Portugal; 
b. not to negotiate or conclude with any retail distributor of food products […] 
that is not an entity exercising control over or affiliated to Modelo Continente 
[…], association agreements, joint ventures, agreements in principle, advertising 
campaigns or other instruments which have the object or effect of granting 
discounts or other monetary benefits relating to electricity or natural gas, 
irrespective of the terms thereof. 
12(3) In the event that this agreement is renewed or extended, or in the event that 
the parties decide to conclude another agreement the subject matter of which is 
similar to that of this agreement, the parties undertake to review the terms of the 
exclusivity provided for in this clause so as to guarantee their compatibility with 
the national and European competition rules applicable’. 
9 The aforementioned clause was established for a period of two years, being 
applicable during the term of the association agreement and for a period of one 
year after its expiry (that is to say, between 5 January 2012 and 31 December 
2013). 
10 The appellants form part of two Portuguese corporate conglomerates, the EDP 
Group and the Sonae Group. 
11 On the date on which the association agreement was concluded, the parties were 
not current competitors on the market for the retail sale of food products or on the 
market for the marketing of natural gas.  
12 The TCRS, for the purposes of determining the existence of an agreement 
restrictive by object between potential competitors on the market for the 
marketing of electricity, as provided for in the aforementioned clause 12(1)(a), in 
the context of the association agreement concluded between Sonae and EDP, 
considered three circumstances to be sufficient: 
a) the formation of an association between an undertaking in the SONAE group 
and Endesa (in particular, via the creation of the joint company Sodesa); 
b) the formation of an association between MCH and Galp; and 
c) the pursuit of activities on the market for the production of electricity by MCH 
and other companies belonging to the corporate conglomerate of which MCH 
forms part. 
13 Neither of the first two circumstances concerns the time when the association 
agreement in question was concluded, or the period during which that clause was 
in force: at the time when the association agreement was concluded, the 
association with Endesa had not been in force for several years, and the 
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association with Galp related only to the retail distribution of fuel for motor 
vehicles and did not give rise to any type of benefit that was such as to facilitate 
its entry into the relevant market for the marketing of electricity at the time when 
the agreement was concluded. 
14 The markets for the production of electricity and the marketing of electricity to 
end customers are different. 
15 It follows from the association agreement that MCH subsidised part of the 
discounts granted. 
16 It was also demonstrated that: 
– the EDP Continente Scheme was a pioneering initiative, as an association 
between an electricity supplier and a retail operator of food products aimed at 
attracting customers and stimulating sales through the grant of discounts to 
consumers; 
– it made possible the conclusion of electricity supply contracts across a network 
of 180 MCH-operated retail outlets, that supply being shared between EDP 
Comercial and MCH; 
– under the Scheme, the parties set up an exclusive freephone contact line with a 
dedicated telephone number, created a website devoted to the campaign and 
conducted advertising and marketing initiatives based on a cross-channel 
communication plan; 
– in accordance with clause 6(2) of the association agreement, customers signing 
up to the Scheme received coupons equal to 10% of the value of their 
consumption of electricity and contracted power in the previous month or 
months which could be redeemed at outlets operated by MCH and companies 
in which Sonae Investimentos held a shareholding; 
– in order to monitor the issue and use of the discount vouchers, EDP Comercial 
and MCH set up a system of information flows whereby, every day, EDP 
Comercial would send MCH a computer file containing information on 
customers (their names, addresses and discount details) and, by the 10th of 
every month, MCH would send EDP Comercial a file indicating which 
discount vouchers had been activated; 
– 146 775 customers signed up to the Continente Scheme, of whom 137 144 
remained contractually linked to EDP Comercial during and after the end of the 
campaign; 
– the discounts from which EDP Continente Scheme members benefited 
amounted in total to EUR 6 907 354 and the value of all the coupons activated 
came to almost EUR 6 024 252; 
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– of that number, EUR 1 795 912 was borne by MCH; 
– the costs of the association in terms of advertising, marketing, communications 
and the defence of punitive proceedings relating to the association’s initiatives 
were borne in equal parts by EDP Comercial and Modelo Continente; 
– customers included in the EDP Continente Scheme who actually signed up to it 
could change supplier whenever they saw fit and, at the end of the campaign 
for that Scheme, could choose either to remain with EDP Comercial or to 
contract the services of a competing supplier. 
Main arguments of the parties in the main proceedings 
17 The Competition Authority argues that the fact that the non-competition clause 
in question resulted in substantial discounts for many Portuguese families cannot 
be used as a legal basis for reducing the amount of the fines by 10%. 
18 EDP – Energias de Portugal, S.A. argues that the judgment under appeal does 
not mention Article 73 of the NRJC, which concerns the holding of legal persons 
liable for the commission of breaches, but does refer to Article 3 of that text, 
concerning the concept of undertaking, which is not sufficient for that purpose. It 
also cites the absence of any proven facts justifying its conviction. 
19 Sonae MC, SGPS, S.A. argues that there are no connecting factors on the basis of 
which it, as parent company, and Sonae Investimentos, as principal parent 
company, can be held liable for having committed a breach consisting in the 
conclusion of an agreement to which MCH is a party. It goes on to say that the 
court of first instance did not take into account the facts alleged by Sonae 
Investimentos, that there are no factual and legal grounds on which it may be held 
liable and, albeit in the alternative, that the amount of the fine does not reflect the 
degree of involvement of each alleged participant. 
20 Modelo Continente Hipermercados, S.A. argues, in the first place, that a non-
competition covenant is not an anti-competitive agreement and it cannot be 
confused or directly associated with such an agreement. The abstention 
obligations by which the parties agreed to be bound are not anti-competitive. The 
concept of potential competition must be interpreted in the light of the criteria laid 
down by the case-law of the Court of Justice of the European Union, matters 
relating to other legal persons not subject to those obligations being irrelevant or 
insignificant to that interpretation. Since MCH cannot be regarded as a potential 
competitor of EDP Comercial on the market for the marketing of electricity in 
Portugal, there is no competition that is capable of being restricted. Article 3(2) of 
the NRJC cannot be interpreted (or applied) as an extension of the entities relevant 
for the purposes of interpreting the concept of ‘potential competitor’. Even if that 
provision were not understood in this way, clauses 12(1)(a) and 12(2)(a) cannot in 
any way be classified as constituting a restriction by object. From a legal point of 
view, the association agreement is akin to an agency contract or, at least, a 
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cooperation contract and must therefore be subject to the rules applicable to 
contracts of this kind. In the alternative, it argues that the amount of the fine is not 
justified, fair or necessary, but is excessive and disproportionate. 
21 EDP Comercial – Comercialização de Energia, S.A. states that none of the 
companies subject to clause 12(1)(a) was a potential competitor of EDP 
Comercial at the time when the agreement was concluded; that this is a vertical 
agreement within the meaning of competition law; that it does not constitute a 
restriction by object; that there is no subjective attribution [of liability]; and that 
the penalty was not based on criteria of proportionality, appropriateness and need. 
Brief presentation of the grounds of the request for a preliminary ruling 
22 The appellants were convicted of a breach of Article 9(1) of Law No 19/2012, the 
wording of which is substantially the same as the wording of Article 101(1) 
TFUE, as part of the approximation and harmonisation [of Portuguese law] with 
the rules applicable in the European Union to practices capable of significantly 
affecting trade between Member States, national competition law being generally 
based, moreover, almost entirely on the corresponding provisions of European 
competition law. 
23 The appeals were accompanied by the opinions of academic lawyers who took the 
view that the association agreement is an agency contract and that, on that basis, 
the non-competition clauses might be found to be permissible. It is therefore 
appropriate to determine whether non-competition obligations such as those 
contained in clause 12(1) are consistent with the spirit and the economic and 
social purpose of agency contracts, comply with the law (Articles 4 and 9 of 
Decree-Law No 178/86 of 3 July 1986 laying down the rules governing agency or 
commercial representation contracts, and Council Directive 86/653/EEC of 
18 December 1986 on the coordination of the laws of the Member States relating 
to self-employed commercial agents (OJ 1986 L 382, p. 17) (Articles 7(2) and 
20)), and are usually found in contracts of this kind. 
24 In this case, the appellants belong to undertakings/groups traditionally – and at the 
time when the association agreement was concluded – linked to different markets, 
and it is therefore necessary to determine whether those groups fall within the 
concept of relevant undertaking for the purposes of Article 101 TFEU and 
whether a situation of ‘economic unity’ and ‘decisive influence’ is present here, 
and to examine whether the ability of such undertakings to enter the market can be 
defined by the mere fact of belonging to an economic group with some power on 
the market. 
25 Consequently, in order to dispose of this appeal, it is thus necessary, as a first step, 
to answer the questions as to whether the undertakings referred to in the 
Competition Authority’s decision are to be regarded as potential competitors and 
whether the obligation laid down in clause 12 of the association agreement 
concluded between MCH and EDP Comercial, in particular the part relating to the 
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market for the marketing of electricity in mainland Portugal, may be regarded as 
an agreement restrictive of competition by object. 
26 The relevant judgments of the Court of Justice of the European Union [Portugal 
Telecom SGPS, S.A. (T-208/13, EU:T:2016:368); E.ON Ruhrgas AG and E.ON 
AG (T-360/09, EU:T:2012:332); H. Lundbeck A/S and Lundbeck Ltd (T-472/13, 
EU:T:2016:449), and Generics (UK) Ltd and Others (C-307/18, EU:C:2020:52)] 
do not relate to situations which are exactly parallel to that in this case, since the 
undertakings pursue activities not only on geographically different markets but 
also in relation to different products on the same market (as is true of the ‘pay for 
delay’ cases, in which the undertakings involved pursue their activities on the 
pharmaceutical products market, for example). 
27 It is also necessary to determine whether the effects favourable to competition 
which have been proved in the proceedings give rise to reasonable doubts as to 
whether the agreement is sufficiently harmful to competition for it no longer to be 
considered unnecessary to examine its effects on competition in the classification 
of that agreement as ‘restrictive by object’ [see the judgments in Generics, cited 
above, paragraphs 103 to 108, and Budapest Bank, of 2 April 2020 (C-228/18, 
EU:C:2020:265, paragraphs 33 to 55) and 74 to 86]. 
28 It is also important to determine whether, in addition to the companies which 
concluded the agreement, the other undertakings with shareholdings in the capital 
of those companies must also be convicted, since the concept of undertaking 
adopted by the Court of Justice, in particular in the judgments in Stora 
Kopparbergs Bergslags AB (C-286/98 P, EU:C:2000:630), Akzo Nobel NV 
(C-97/08, EU:C:2009:536, and C-516/15 P, EU:C:2017:314) and Vantaan 
kaupunki (C-724/17, EU:C:2019:204), among others, has not been fully 
recognised in the case-law of the referring court.  
29 In the light of all the foregoing, the questions referred appear to be relevant to the 
proper disposal of this case and it is appropriate, in the light of the serious 
breaches for which liability has been established and the penalties imposed, that 
the Court of Justice of the European Union should interpret the provisions in 
question so that the national legislation in question can subsequently be applied 
securely and consistently with the case-law of the European Union.