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On March 24, 2021, Cani Fernández, President of the National Commission for Markets and Competition (“CNMC”), appeared before the Economic Affairs and Digital Transformation Committee of the Spanish Congress. She presented the CNMC’s main lines of action and future plans and priorities. In particular, she explained the CNMC’s 2021-2026 Strategic Plan, as provided in article 39 of Act 3/2013, of June 4, creating the CNMC.

The President of the CNMC first discussed the antitrust mechanisms implemented during the COVID-19 pandemic, highlighting (i) a new protocol for dawn raids including specific protective measures against COVID-19; and (ii) a special email inbox set up in March for pandemic-related competition complaints. According to Cani Fernández, there have been over 700 tip offs in four months, some of them leading to CNMC investigations.

She claims that these mechanisms have enabled 12 sanctioning proceedings for anticompetitive practices to be initiated in 2020, the highest number since 2014. The Economic Intelligence Unit (“EIU”) has also helped. The EIU was responsible for the first proceeding initiated as a result of the use of algorithms to find unlawful practices, specifically in the real estate sector.

Also, regarding the update of the Guide on Public Procurement and Competition, Cani Fernández stated that the CNMC is particularly committed to this project and thus, as she has said repeatedly, “any matters related to public procurement are a priority.” To this end, the EIU will further develop the use of advanced algorithmic data analysis techniques to find anticompetitive practices, especially relying on CNMC’s access to the public procurement platform, including information on tender procedures and offers.

Cani Fernández also highlighted CNMC’s advances in the field of compliance. The CNMC will specifically monitor industries where the pandemic may have weakened competition, particularly the pharmaceutical, insurance, financial and funeral sectors.

Regarding the digitization of the economy, the CNMC will continue to focus on identifying (i) risks for competition arising from mergers; and (ii) potentially anticompetitive practices in digital markets limiting the societal benefits of the digitization of the economy.

Any major upcoming changes will be related to EU regulatory initiatives: (i) the transposition of Directive 2019/1 to empower competition authorities of Member States to be more effective enforcers (the ECN+ Directive); (ii) the adoption of the New Competition Tool, finally turned into the Digital Markets Act and the Digital Services Act, which will have a significant impact on digital economy; and (iii) the competition and sustainability consultation in the context of the European Green Deal, seeking to introduce new competition enforcement criteria (e.g., sustainability or environmental standards) on top of the traditional criteria.

To promote competition, the CNMC will cooperate with government authorities on enhancing regulation, so as to increase the effectiveness of public intervention in the markets, e.g., designing competitive public tender procedures.

Finally, Cani Fernández, requesting Congress’ support, committed to implementing an organizational and operational transformation of the CNMC, so it can pursue its objectives as efficiently as possible. We expect the CNMC to boost its activity by amending its regulations and, particularly, by increasing intervention. Thus, the adoption of the 2021-2026 Strategic Plan will open up a new time period for the CNMC, which will be marked by a return to a high level of activity on finding anticompetitive practices and a focus on digital markets and public procurement.

See the full intervention here.

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Especialista en acuerdos de distribución y abusos de posición dominante, asesora regularmente a importantes multinacionales y fondos de inversión en materia de control de concentraciones, tanto a nivel español como comunitario, asumiendo su representación ante las instancias administrativas. Ha representado y asesorado con éxito a numerosos clientes ante las autoridades españolas en materia de defensa de la competencia, en los dos ámbitos administrativo y contencioso (acuerdos, abusos, concentraciones, ayudas públicas).


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