In a decision of July 13, 2017, the National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia or “CNMC”) decided to close an investigation in relation to medical gases after concluding that there was insufficient evidence to prove the existence of practices contrary to Article 1 of Law 15/2007 for the Defense of Competition.

Following dawn raids carried out at the premises of Linde, Air Liquide, Carburos Metálicos, Contse and Praxair in July 2015, the CNMC opened a formal investigation in January 2016 against a total of ten companies suspected of anticompetitive practices, including alleged market-sharing and bid-rigging between 2012 and 2014.

In the statement of objections (SO) in October 2016, the Directorate of Competition (“DC”) of the CNMC accused all ten firms of agreements that constituted a cartel in the Spanish medical gases market between 2012 and 2014. Following the companies’ replies to the SO, the DC dropped its allegations against five of the firms involved (Contse, Esteve Teijin Healthcare, Oxigen Salud, Oximesa and Vivisol Ibérica) stating that there was no evidence of their participation in the conduct under investigation, but in its Proposed Resolution maintained allegations against Linde, Air Liquide, Carburos Metálicos, Gasmedi and Praxair.

The Council of the CNMC, however, subsequently found that the five companies have presented a plausible alternative explanation of the evidence gathered and, in the absence of proof beyond reasonable doubt, that the case should be closed against all companies without establishing an infringement

Although there have been other CNMC decisions closing investigations due to lack of evidence at an earlier stage (such as a recent case concerning removals in the fine art sector and others in the automotive sector), this case represents a very rare example of the Council overruling a proposed resolution of the DC following a full investigation, particularly in relation to an alleged cartel. Moreover, the decision constitutes a welcome confirmation of the burden of proof in CNMC investigations.

The full text of the CNMC decision in the proceedings S/DC/0561/15 Gases Medicinales is available (in Spanish) here.



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