On October 24, 2017 the Spanish National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia or “CNMC”) held its Annual Competition Day at which it celebrated the tenth anniversary of the enactment of Law 15/2007, of July 3, for the Defense of Competition.
This day brought together well-known experts in competition law and economics to discuss various topics that have gained importance throughout the last decade. During the conference, numerous allusions were made to the success of the Spanish competition authority in regards to cartel detection (60 in total since the Law was adopted). At the same time, in a spirit of self-criticism, the CNMC took the opportunity to announce a number of measures aimed at strengthening the quality of its decisions.
The measures come in the wake of a number of recent judgments by the Audiencia Nacional and Supreme Court annulling CNMC fines (as discussed here, here, here and here, in just a few weeks in the summer of 2017 fines of more than €200 million were annulled in five high profile cases). They also come at a time when the Spanish government is considering reforms to the authority.
The measures come in the wake of a number of recent judgments by the Audiencia Nacional and Supreme Court annulling CNMC fines
Specifically, the changes announced by the CNMC included the reinforcement of the economic and legal analysis of its decisions and, in particular, the analysis of expert reports submitted in the course of investigations. In addition, the CNMC is determined to participate more intensively in the appeals of CNMC decisions (normally defended by Spain’s government legal service).
The CNMC also announced the creation of an economic intelligence unit to reinforce ex-officio investigations through statistical techniques, as well as the publication of provisional guidance in relation to the calculation of fines (the Supreme Court deviated in 2015 from the existent communication, and there was considerable uncertainty surrounding this issue).
Lastly, a number of procedural improvements including providing an indication of the amount of fines in the Directorate’s draft decisions (on which parties have a chance to comment) and organizing more oral hearings as part of the investigative process were also included as part of the coming measures.
On another note, José María Marín Quemada, president of the CNMC, brought up his wish to establish in Spain a settlement procedure (through this procedure, the adoption of a decision in cartel cases is speeded up when the parties admit the charges of the European Commission, and in return receive a reduction of 10% in the fine), although no concrete plans were announced.
The press release issued by the CNMC is available (in Spanish) at: https://www.cnmc.es/node/365313