The Competition Authority (AdC or Authority) has opened proceedings against the following companies: Associação Portuguesa de Hospitalização Privada, G.T.S – Grupo Trofa Saúde, SGPS, S.A., Hospital Privado da Trofa, S.A., Hospital Particular do Algarve, S.A., José de Mello Capital, S.A., CUF, S.A., Lusíadas, SGPS, S.A., Lusíadas, S.A. and Luz Saúde, S.A., after receiving several complaints in February 2019 regarding conduct carried out by the aforementioned healthcare companies, resulting in the implementation of an agreement or concerted practice to coordinate their interests and conduct in the context of negotiations with ADSE, regarding its price list and rules, as well as in the context of the process of regularizing invoices for 2015 and 2016, through and with the participation of APHP. The practice was focused on the entire national territory. In order to ascertain the facts, several procedures were carried out, in accordance with Article 17, § 2, and Article 18 of Law No. 19/2012, 8 May. A Final Decision was adopted in June 2022. However, the parties concerned, dissatisfied with the Decision adopted by the AdC, filed appeals before the TCRS, which were admitted by the TCRS. At the same time, several parties questioned the treatment and classification of confidentiality carried out by the AdC, and an appeal was filed against the interlocutory decision of the AdC of July 6, 2021 (ref. S-AdC/2021/1883) that finally decided on the confidentiality of the party concerned Lusíadas.
Following an appeal by Lusíadas, the TCRS dismissed its claim, confirming the validity of the AdC's decision. Not agreeing with that decision, the aforementioned party filed an appeal before the Lisbon Court of Appeal (TRL) which, partially granting the appeal, determining, in a ruling dated of October 23, 2023, the revocation of the TCRS's ruling and its replacement by another declaring null and void the AdC's decision that rejected the confidential treatment of several e-mail messages and their attachments. The aforementioned declaration of nullity was supported by the judgment of unconstitutionality proclaimed by Constitutional Court Ruling No. 91/2023 of March 16, 2023, with the TRL concluding that the elements subject to confidential treatment constituted email messages seized with the authorization of the Public Prosecutor's Office, a circumstance that, in its view, determined the nullity of all that evidence. Following the Judgment issued by the TCRS, dated April 15, 2024 (Case No. 398/22.0YUSTR / Citius Reference: 455595) (hereinafter “TCRS Judgment of April 15, 2024” or “Judgment”), in the context of the aforementioned misdemeanor proceeding, the TCRS, in compliance with the TRL ruling identified above, ruled that the e-mails that were seized by the AdC, without the authorization of the investigating judge and without the consent of the entities sought, must be removed from the respective infraction reports, having declared the Statement of Objections and the Final Decision adopted by the AdC null and void. The files of the case were sent back to the AdC to pursue/resume the investigation of the case.