In October 2013, the former Competition Commission was renamed the National Markets and Competition Commission (CNMC in its Spanish initials), encompassing the former energy and telecoms agencies, among other regulatory bodies. In May 2014, the CNMC published its Strategic Plan (SP), declaring cartel enforcement to be one of its main priorities. According to the SP, an action plan for cartels (e.g. illegal agreements between competitors to fix prices and/or share markets) will be drawn up in the near future.
Antitrust enforcement has increased significantly in recent years in Spain, particularly as regards cartels. In October 2013, the CNMC reported fines of € 454 million imposed in the previous year. There is no similar level of fines imposed by any other competition authority within the EU.
The most important instrument which has allowed the CNMC to strengthen its enforcement activities with respect to cartels has been the leniency programme. Under this programme, companies involved in cartel arrangements are allowed to address the CNMC and supply all incriminatory evidence relating to the infringement in exchange for immunity from, or a large reduction in, any fine which may be imposed. Full immunity is only available for the first company to apply for leniency with the CNMC.
Competition proceedings usually involve a large number of companies and trade associations. For example, in the urban waste management case currently being investigated by the CNMC, there are more than 50 companies involved. Likewise, in the motor vehicle distribution investigation launched back in September, more than 150 companies are under investigation, while in 2012 the CNMC imposed fines totalling 47 million euros on 47 companies active in the road building industry.
The Spanish Appeal Court (Audiencia Nacional) and the Supreme Court have confirmed a large number of appeals, particularly in relation to the powers of the competition authority when handling unannounced inspections and the interpretation of the concept of cartel. A significant number of appeals, however, have quashed the CNMC decisions imposing fines or ordered significant fine reductions.
****
Crisanto Pérez-Abad
Head of Competition Department, Eversheds Nicea