This week, the Spanish National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia, or CNMC) published a decision of March 14, 2017, by which it imposed a fine of €20,000 on SRCL CONSENUR, S.L.U. (“Consenur”), for failure to notify a concentration and to suspend its execution before receiving authorization (commonly known as “gun-jumping”).

 

In August 2015, Consenur acquired the waste management business of Cathisa Medioambiente, S.L., a company active in the Canary Islands. According to Consenur’s assessment, the transaction was not subject to prior notification as it didn’t fulfil any jurisdictional merger threshold.

On its own initiative, the CNMC requested information from Consenur and third parties (public administrations of the Autonomous Regions in charge of waste management), and on the basis of the information collected required Consenur to notify the transaction.

Consenur notified in June 2016 and the CNMC cleared the concentration in first phase without conditions (the CNMC’s decision – in Spanish – is available here: https://www.cnmc.es/expedientes/c076116).

Then, in September 2016 the CNMC opened an investigation of Consenur for failure to notify and found that the transaction was notifiable based on Spain’s market share threshold. The CNMC disagreed with CONSENUR’s assessment on the relevant market definition:

  • In relation to the relevant product market, both sides agreed on considering the market for the treatment and disposal of hazardous sanitary waste. However, based on Spanish national and regional legislation and the European Commission’s Decision 2000/532/EC establishing a list of hazardous waste, the CNMC further segmented that market by distinguishing (i) the type of waste and (ii) the type of treatment to be applied to the waste.
  • With respect to the geographic market, the CNMC dismissed Consenur’s arguments in favour of a national market, and in turn considered the existence of a separate geographic market limited to the Canary Islands, finding that the competition conditions in this region were substantially different.

On the basis of the CNMC’s narrower market definition, the transaction led to an acquisition or increase of Consenur’s market share exceeding the relevant jurisdictional threshold –which in this case was 50% since Cathisa had revenues of less than €10 million. On that basis, the CNMC concluded that Consenur had been at least negligent in failing to notify, or at least consult with the authority, and imposed a fine for the infringement.

Fines for failure to notify can be up to 5% of the infringing party’s turnover. However the CNMC took into account the small size of the target and the fact that the transaction was non-problematic and set a fine of €20,000, amounting to a 0,037% of Consenur’s turnover.

This is the latest of a long line of cases of fines for failure to notify based on the market share threshold, and the second occasion in which the CNMC fines Consenur for the same infringement. The first case (which is referenced in the decision) was also based on differing views on the relevant market, and on that occasion both the CNMC’s decision to impose fines and the authorization of the transaction were annulled in court on the basis that there was no notifiable transaction.

The case also highlights the fact that the CNMC’s actively monitors M&A activity as part of its efforts to enforce the notification requirements, even in small and non-problematic cases.

The CNMC’s decision (case SDC/DC/0074/16; in Spanish) is available here: https://www.cnmc.es/sites/default/files/1647653.pdf.