The Spanish National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia or CNMC) has found Isma 2000 and SRCL Consenur guilty of market sharing, exchanging sensitive commercial information and efforts to obstruct the entry of competitors into the market for sanitary waste management in the Balearic Islands, imposing fines of €3.6m.
The investigation originally started in 2012 after a complaint by a competitor, Aldamo, against Anglo Balear de Servicios e Higiene (ABH), Consenur and Isma 2000. The CNMC carried out an investigation, including unannounced inspections, but in February 2014 the Council of the CNMC decided to close the case finding that the companies were specialized in different segments of the market and that the harm alleged by Aldamo was not sufficiently proven.
However, in 2014 Aldamo appealed the decision closing the case and in a judgment in June 2015, the Audiencia Nacional not only accepted that appeal but also found that the coordination between the firms had indeed been anticompetitive and on that basis instructed the Council of the CNMC to issue a new decision finding the existence of an infraction.
ISMA 2000 and Consenur then appealed that judgment to the Supreme Court. On 19 February 2018, the Supreme Court ruled in their favour finding that the Audiencia Nacional had no power to instruct the Council of the CNMC how to decide on the merits of the case and could only order the CNMC to investigate once again. The Supreme Court then ordered the CNMC to open a new investigation, but also appeared to agree with the Audiencia Nacional, indicating in its judgment that “we share the opinion of the [Audiencia Nacional] in their appreciation that the decision to close the fining procedure did not include a detailed analysis of the available evidence, nor examine with the necessary attention the facts that the Directorate of Investigation set out in its proposed decision as proven.”
The CNMC opened a new investigation on June 5, 2018, resulting in a final decision just four months later on September 27, 2018. Acting on the judgment of the Supreme Court and on the basis of the same evidence, the second time around the Council of the CNMC found that there was sufficient evidence of collusion to the extent that companies shared the market, exchanged commercial sensitive information and obstructed the entry of competitors for sanitary waste management. Accordingly, the CNMC declared that sanitary waste managers to have breached Article 1 of the Spanish Law for the Defense of Competition and imposed fines on Isma 2000 and SRCL Consenur (which in the meantime had acquired ABH and Consenur).
The new decision did not expressly address the reasons for the divergence from its original conclusions, although it is notable that in the intervening years there had been a number of changes to the composition of the Competition chamber of the Council, with three of the five members of the 2014 chamber (including the two rapporteurs for the decision) having left the CNMC in the interim.
The decision, which clearly throws up interesting issues in relation to double jeopardy, is available (in Spanish) here.