This article aims to provide an overview of some of the most relevant developments for competition law in Spain over the last year, in which the Spanish Competition Authority (“CNMC”) was very active in enforcing competition rules.
1. Anticompetitive conducts
The CNMC has focused a significant part of its resources in the investigation of conducts constituting a cartel. Some of the investigations carried out resulted in the imposition of high fines in different sectors:
- In February, two important regional radio taxi companies were held liable for the creation of an alleged cartel. According to the CNMC, the companies co-ordinately sanctioned taxi drivers that provided services to third intermediary companies and refused to readmit dismissed drivers who breached the agreement for a period of 3 years. Ultimately, only one of them was fined 31,174 EUR, while the dissolution of the other prevented it from being sanctioned.
- In July, the CNMC fined two leading companies for the provision of business information database services in Spain a total of 3.6 million EUR for sharing customers and fixing prices. Both companies applied for leniency and benefited from a 30% reduction of the amount of the fine, after having provided the CNMC with evidence of the existence of the anti-competitive conduct.
- Later in the same month of July, the CNMC fined four companies and six individuals a total of 6.5 million EUR for their participation in bid-rigging practices related to the Spanish Ministry of Defence tenders. The companies signed non-compete agreements, submitted coordinated cover bids, failed to provide justification for certain offers and formed unnecessary consortium with competitors. Nearly a hundred contracts valued at over a total of 60 million EUR were impacted by such agreements. The CNMC considered the companies should also be banned from contracting with the Public Administration, but compliance programmes might be positively taken into consideration.
However, cartels are not the only conduct that the CNMC has investigated for breaching competition rules. In fact, other vertical and allegedly abusive practices have been sanctioned:
- In July, the CNMC fined the tech giants Amazon and Apple a total of 194 million EUR for allegedly restricting competition between resellers of the marketplace. According to the CNMC, the companies would have included certain provisions in the contracts regulating Amazon's conditions as an Apple reseller that affected the sale of Apple products and other brands on the marketplace’s website in Spain by (i) unreasonably restricting the number of Apple resellers; and by (ii) limiting advertising space for products competing with Apple.
- In December, a power generation company was fined 384,672 EUR for abusing its dominant position in the market for access and connection to the electricity transmission grid at certain nodes of the network. Since each node has a limited capacity, access is assigned by the grid manager according to capacity that is available. The CNMC concluded that the company had abused its dominant position by getting access for its own facilities while not processing those of a competitor.
2. Merger control
The CNMC has also played a central role in merger control enforcement, authorising more than 60 mergers over the last year.
Most of those mergers were approved during Phase I without any commitments, except for three transactions that required certain commitments from the participating companies in order to be cleared. More specifically, the transactions affected the markets for “multi-choice” vouchers, advertisement spend audit services and retail distribution for self-service daily consumption products.
Only one merger needed to formally open Phase II, given that specific commitments were required to solve deeper competition risks posed by the proposed transaction for the maritime transport sector, since it concerned the management of the port of Barcelona and the regular transport of roll-on/roll-of cargo and passengers to the Balearic Islands. During Phase I, the CNMC considered that refusing a part of the concession for the passenger and ro-ro terminal was insufficient and, on Phase II, the CNMC accepted additional commitments, which included, inter alia, maintaining the commercial pre-existing conditions to the transaction, in order to minimize the competition risks.
The CNMC has also imposed severe penalties in relation to breaches of merger control rules in the Spanish telecommunications sector:
- In January, the CNMC fined an important operator primarily engaged in the provision of electronic communications services a total of 1.5 million EUR for failing to give prior notification of the acquisition of a company in the wholesale market for the provision of call termination services on fixed networks. The later had its own geographic numbering to provide fixed call termination services, implying that the company had a market share of 100%. The CNMC considered the company acted negligently and that the failure to notify constituted gun jumping.
- In March, the CNMC imposed a fine of 6 million EUR to the leading telecommunications company in Spain for breaching the commitments made to obtain clearance of a previous merger. The sanctioned company committed to avoid long-term obligations for its customers (directly or indirectly) related to pay-tv services but failed to do so. In July, the CNMC fined this company once again a total of 5 million EUR for excluding premium content from its wholesale channel offer and imposing clauses leading to de facto exclusivity.
3. Public consultations
The CNMC also has a duty to promote competition in the market by the opening of public consultations aiming to gather the opinion of market operators on different issues and sectors with the main objective of ensuring a healthy competitive environment.
Throughout 2023, the CNMC initiated a total of six public consultations in the following sectors: i) Rail; ii) SMEs in public procurement; iii) Driving; iv) Electric vehicle charging; v) Health care insurance; and vi) Calculation of the reasonable profit to be applied to the prices paid by operators in railway facilities.
Most of these areas are included in the CNMC’s 2023 Action Plan, which covers among its objectives the preparation of studies in sectors that are particularly relevant for costumers.
4. New regulations
In June 2023, the CNMC published its Communication 1/2023 for the determination of the prohibition to enter into a contract with the Public Administration.
Up until now, the State Public Procurement Advisory Board had taken the leading role in determining, through a separate procedure, the scope and duration of this prohibition. From now on, the CNMC intends to determine the scope and duration directly in its final decisions sanctioning anticompetitive conducts. This will allow the prohibition to be effective on the day the such decisions becomes final, avoiding the need that the State Public Procurement Advisory Board opens a subsequent declaratory procedure.
Later that month, the Spanish Royal Decree-Law 5/2023 came into force introducing some amendments to the Spanish Competition Act (Law 15/2007 or "LDC"). These amendments, which we previously reported on here, are predominantly procedural in nature, and some of them were already pending from previous reforms, particularly upon the transposition of the ECN+ Directive.
5. What to expect for 2024
For 2024, the CNMC is expected to continue along the same lines set out in its 2021-2026 Strategic Plan. This Strategic Plan frames the objectives lines of action for the consolidation of a Culture of Competition and Good Regulatory Practices.
In particular, the CNMC is expected to keep the focus on the promotion of competition regarding key areas for the improvement of the functioning of markets for the welfare of consumers, such as transport and postal services, telecommunications and audiovisual media, and the energy sector.
Over the past year, the CNMC has formally opened a few disciplinary proceedings related to: i) hydrocarbon wholesale distribution; ii) wholesale and retail marketing of professional hairdressing products; and iii) publishers of press publications and news agencies.
Also, even if a formal procedure has not yet been opened, the CNMC is currently investigating alleged anti-competitive practices in a number of different sectors, for instance: i) the markets of rail freight transport and rail traction services; ii) supply of digital pharmaceutical logistics tools for pharmacies; iii) electricity sector; iv) travel agencies; and v) installation of equipment and provision of electricity metering services.
Final decisions on the outcome of these opened investigations might arrive in the course of this year.
For more information, please contact Candela Sotés.