On October 8th, 2024, Ius Omnibus filed an opt-out representative action (popular action) against Active Brands – Distribuição e Comercialização de Marcas, S.A. (Active Brands), Gestvinus – Investimentos e Serviços Vitivinícolas e Comerciais, S.A. (Gestvinus) and Sogevinus – S.G.P.S., S.A. (Sogevinus) at the Portuguese Competition, Regulation and Supervision Court (case number 15/24.3YQSTR).
This popular action aims to compensate all consumers who live in Portugal and purchased, between July 8th 2009 and May 29th 2017, products marketed by Active Brands, namely whiskies (including Jim Beam), brandies/cognacs (including Courvoisier, Licor Carolans and Brandy 1920), still wines (including Marquês de Borba, Loios, Conde Vimioso), sparkling wines, fortified wines (Port/Moscatel, including Burmester, Porto Cálem and Velhotes), gins, vodkas, liqueurs (including Licor Beirão), ciders, brandies (including Aguardente CR&F), aperitifs (including Aperol), as well as olive oils and vinegars (including Oliveira Ramos), sold in supermarkets, due to Active Brands’ anticompetitive practices (and with at least the knowledge of Gestvinus and Sogevinus, between January 2009 and October 2013, and from November 2013, with at least knowledge of Gestvinus), in collusion with several large food retailers, which were identified and sanctioned by Portuguese Competition Authority.
It is a popular action in the defense of individual homogenous interests. It is an action in defense of competition and a damages action based on damage caused to consumers by Active Brands, Gestvinus and Sogevinus’ anticompetitive practices and several large Portuguese food retailers, which infringed article 101 TFEU and article 9 of the Portuguese Competition Act.
The popular action is filed under Articles 52(3) and 60(3) of the Constitution, the Popular Action Act (Law no. 83/95) and Articles 31 and 546(2) of the Portuguese Code of Civil Procedure, Articles 3 and 19 of the Private Enforcement Act (Law no. 23/2018) and Articles 5 and of Representative Actions Law (Decree-Law no 114-A/2023).
As declared in the Portuguese Competition Authority decision, Active Brands (and with at least the knowledge of Gestvinus and Sogevinus, between January 2009 and October 2013, and from November 2013, with at least knowledge of Gestvinus), in collusion with some of the main companies of the food distribution sector (large retailers), the retail prices of a wide range of their products were fixed and/or horizontally aligned in the food retail market throughout the entire national territory. The practice occurred, at least between July 8th 2009 to May 29th 2017.
All consumers who live in Portugal and purchased, between July 8th 2009 to May 29th 2017, products marketed by Active Brands, namely, whiskies (including Jim Beam), brandies/cognacs (including Courvoisier, Licor Carolans and Brandy 1920), still wines (including Marquês de Borba, Loios, Conde Vimioso), sparkling wines, fortified wines (Port/Moscatel, including Burmester, Porto Cálem and Velhotes), gins, vodkas, liqueurs (including Licor Beirão), ciders, brandies (including Aguardente CR&F), aperitifs (including Aperol), as well as olive oils and vinegars (including Oliveira Ramos), sold by food retail market (in case food retailers), are represented in this action.
Consumers needn’t do anything in order to be represented and to be entitled to compensation if the action is successful (just need to ask for compensation at that moment).
Any consumer who wishes not to be represented in this action may exercise the right to opt-out, by communicating that intention to the court. Consumers may also decide to intervene in the case in support of Ius Omnibus.
Ius Omnibus asks to Court to:
a) Declare the infringement: to be declared that, since July 8th 2009 until May 29th 2017, Active Brands, Gestvinus and Sogevinus infringed, in a single and continuous practice, Article 101 TFEU (including its previous numbering) and (successively) Article 4(1) of Law no. 18/2003 of June 11, and Article 9(1) of Law no. 19/2012 of May 8, through the practice of an agreement – or, alternatively, a concerted practice – with the participating distribution companies, setting sales prices and other transaction conditions, both directly and indirectly, applicable to the sale of the range of Active Brands products by those distribution companies, throughout the national territory;
b) Declare that the infringement caused damage: to be declared that this Active Brands, Gestvinus and Sogevinus practice had effects throughout the national territory and caused harm to the diffuse and/or collective interests of consumer protection of goods and services and competition, as well as to the homogeneous individual interests of the represented consumers;
c) Condemn to pay compensation to consumers: based on civil liability, Active Brands, Gestvinus and Sogevinus should be jointly condemned to fully compensate all consumers represented in this action for the damages suffered / overprice paid as a result of the anticompetitive practices in question, in a global amount to be determined.
The mass consumer compensation mechanism used here, provided for in the Portuguese rules of class action and of collective actions, has never been tested in practice until the very last step. However, according to the law, the following will happen if the court finds in favour of Ius Omnibus:
1. the Court will set the overall amount of damages to be paid by Active Brands, Gestvinus and Sogevinus to the represented consumers, to be deposited on a compensation fund;
2. the Court will appoint an entity responsible for managing the compensation fund, including the receipt, management and payment of compensation to injured consumers;
3. the Court will set a deadline for represented consumers to claim their share of the compensation and this information will be publicized in various ways;
4. the represented consumers will have to contact the entity that manages the compensation fund, as well as submit the court-decided evidence and the respective payment instructions, in order to receive their share of the compensation;
5. at the end of the legally set deadline, if part of the global compensation has not been distributed to consumers, the remaining amount should be allocated in accordance with the provisions of the law (Article 16(8) of the LAC or, subsidiarily, Article 19(8) of the LPE and Article 22(5) of the LAP).
Consumers do not currently have to contact the Court or Ius Omnibus at this stage, nonetheless it may be in their interest to do so.
All consumers who live in Portugal and purchased products, between July 8th 2009 and May 29th 2017, products marketed by Active Brands, namely whiskies (including Jim Beam), brandies/cognacs (including Courvoisier, Licor Carolans and Brandy 1920), still wines (including Marquês de Borba, Loios, Conde Vimioso), sparkling wines, fortified wines (Port/Moscatel, including Burmester, Porto Cálem e Velhotes), gins, vodkas, liqueurs (including Licor Beirão), ciders, brandies (including Aguardente CR&F), aperitifs (including Aperol), as well as olive oils and vinegars (including Oliveira Ramos), sold in food retail market, are automatically represented in this popular action.
If you do not wish to be represented, you must exercise your right to opt-out.
If you wish to be represented, you do not need to do anything further for now to be entitled to compensation if Ius Omnibus is successful in this action.
At the end of the case, if successful, consumers will have to contact the entity appointed by the Court to request compensation.
If consumers wish to intervene in the action in support of Ius Omnibus, they may do so, until February 12th 2025.
Consumers represented in this action are invited to contact Ius Omnibus so that their data be registered and they be informed by Ius of all developments in this case, ensuring they do not miss the deadline to ask for compensation, when the time comes. Consumers can do so by submitting the form available on this page.
Preparing an action of this nature in an adequate way, which allows for its success, is extremely costly, requiring the hiring of specialized lawyers and consultants. The action’s success is dependent on suitably handling very broad and technical facts and an extremely complex area of legal-economic knowledge, as well as reacting effectively to the vast financial and human resources which will be deployed by the other sides.
However, consumers will never be asked to pay anything, to take on any cost or to give up any part of the compensation they are entitled to. This litigation is financed by a specialized entity in funding legal actions, the Augusta group. The funding agreement is submitted to the Court for scrutiny, with the funder lacking the possibility to interfere or determine the case management by Ius. The funder assumes full responsibility for all risks and costs. In the event of Ius losing the case, the funder is not entitled to any compensation. If Ius prevails, the funder will receive an amount determined by the Court as reasonable and equitable.
The funder will only receive this sum if a portion of the overall compensation paid by Active Brands, Gestvinus and Sogevinus remains after the deadline for consumers to request individual compensation has passed. The remaining amount is then allocated in accordance with the legal provisions.
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