In the context of sanctioning proceedings, it is more and more common that companies support their legal arguments of defense with the submission of economic reports. This is also the case of proceedings before the CNMC.
On November 6, 2018, the CNMC published a “Guidance document for the submission of economic reports to the Directorate of Competition” (Guidance document), dated September 30, 2018.
The Guidance document contains recommendations on the characteristics, structure and content of the economic reports submitted in the context of sanctioning proceedings. According to the CNMC, the aim of the Guidance document is threefold: (i) to increase the foreseeability of the proceedings for interested parties; (ii) to facilitate the CNMC’s assessment of the reports and the trustworthiness of the results; and (iii) to allow the CNMC to reproduce the results reached by the economists.
Although the Guidance document is envisaged as a recommendation to the parties, it expressly states that the CNNC will not give the same credit to reports that do not comply with the minimum requirements established in the Guidance document. The CNMC will only accept reports drafted in Spanish.
Overall characteristics: minimum and advisable content
The CNMC establishes that economic reports have to comply with the following minimum requirements:
- Relevance: it is essential that the report explicitly states the relevant question it aims to answer and how the methods selected by the economists are fit to address the question. In addition, reports have to take into consideration the documentary evidence included in the file as well as other elements of proof.
- Complete information: reports must contain all that is necessary to evaluate them and reproduce them.
- Transparency: economists must state the assumptions and models on which they base their analysis.
- Consistency: the assumptions and the results of the report have to be consistent and not to incur in contradictions.
Besides, the CNMC also considers it advisable that reports contain an executive summary and a bibliography. Interested parties are also advised to submit a non-confidential version of the report.
The Guidance document also contains specific recommendations for both theoretical and empirical reports.
Characteristics of the conceptual/theoretical analysis
When the parties decide to submit a conceptual/theoretical analysis, they will have to explain in detail the theoretical model applied, including the assumptions made to simplify the functioning of a particular market, and defend why the model is relevant in the specific case. When the report includes information in graphic and mathematical format, it has to be accompanied by written explanations.
Regarding the results of a conceptual/theoretical analysis, the parties will have to include an explanation on the robustness of the results.
Characteristics of empirical analysis
Economic reports containing empirical analysis must also establish the theoretical model on which they rely. In case the parties decide to submit a report based on econometric models, these have to follow the steps described in the Guidance document (model specification, estimates used and relevant statistics, and validation methods).
Regarding the data, the CNMC requests the parties to make a self-disclosure exercise and comply with the following requirements:
- Description of the data gathering process.
- Submission of the initial and final databases used for the analysis.
- Description of the initial and final variables, units and problems encountered.
- Explanation on the treatment of the data included in the database.
The results of an empirical analysis need to be statistically relevant (at a level of 1% or 5%) and must include the parameters commonly used to assess the robustness of the results.
It is important that the parties wishing to submit an economic report follow as much as possible the Guidance Document to ensure that their report is taken seriously into consideration and that the parties can engage in a discussion with the economic experts from the CNMC on the economic aspects of a case.
Besides, it is also advisable to comply with the Guidance Document to ensure that, in case of an appeal against the decision of the CNMC, the Courts can also contrast and verify the alternative arguments put forward by the parties and the CNMC in relation to the interpretation of the case from an economic perspective.