In its Judgment of September 30, 2019, the Supreme Court dismissed the appeal in cassation brought by Mediaset against the National Court of Appeal Judgment of April 23, 2018 (appeal 239/2016). The Supreme Court also established a criterion on the time period for the National Commission on Markets and Competition (CNMC) to recalculate the amount of previously annulled fines.
Since the Supreme Court Judgment of January 29, 2015 annulling the CNMC Communication on the setting of fines, the proceedings regarding the recalculation of fines have significantly increased.
In its Judgment of September 21, 2015, the Supreme Court required the CNMC to recalculate the fine imposed on Mediaset in 2011 for breaching the commitments regarding the concentration of Telecinco and Cuatro (SNC/0012/11). This fine was recalculated in CNMC’s recalculation decision of May 12, 2016 (VSNC/0012/11). According to the appellant, the 6-month period starting when the CNMC knew about the Supreme Court judgment, i.e., November 5, 2015, had expired. Therefore, the appellant claimed that the recalculation proceedings were time-barred.
In its Judgment of September 30, 2019, the Supreme Court stated that, if a CNMC fining decision is annulled only regarding the amount, the new CNMC decision simply recalculating the fine as ordered by the court qualifies as an act enforcing the judgment. As such act of enforcement, it would not be subject to Law 39/2015, of October 1, on the Standard Administrative Procedure, which sets a 6-month period to issue a decision. Exceeding this time period entails that the administrative procedure be time-barred. The Supreme Court confirmed that the CNMC recalculation decision, being an act of enforcement, is subject to the time period of article 104 of the Act on the Contentious-Administrative Jurisdiction. Exceeding this time period allows the parties concerned to apply for the compulsory or subsidiary enforcement of the judgment through a special application for the enforcement of judgments.
Mediaset claimed that by not holding a hearing, the CNMC breached its rights of defence. The Supreme Court concluded that a hearing is only necessary if the findings of the judgment require (i) discussing issues that were not discussed during the proceedings; or (ii) making calculations that allow for discretion. However, according to the Supreme Court, if the judgment clearly sets the criteria to calculate the fine as discussed between the parties during the proceedings, the CNMC is not required to initiate a new administrative procedure hearing the parties concerned. The Supreme Court argued that not having a hearing does not prevent the fined company to bring a special application for the enforcement of judgments or to appeal the recalculation decision.
Consequently, the Supreme Court dismissed Mediaset’s appeal against the EUR 1.6 million fine imposed by the CNMC in 2016. The CNMC imposed this fine after the Supreme Court ordered a recalculation of the initial EUR 3.6 million fine.