Cartel Regulation

In Spain, the competition provisions, and more specifically those in relation to cartel practices, are set out in the Spanish Competition Act 15/2007 (SCA) as well as in Royal Decree 261/2008, which implemented the Regulation on Defence of Competition (RDC). The RDC developed some of the provisions stated in the SCA in relation to cartels, such as the investigating powers of the National Markets and Competition Commission (NMCC). Note that article 101 of the Treaty on the Functioning of the European Union (TFEU) also applies with regard to cartels affecting competition in Spain where there is also an effect on trade between member states.

Moreover, the Civil Procedure Act 7/2001 (CPA) is also relevant as it contains some provisions intended to favour evidence disclosure in claims for damages derived from infringements of competition law.

In addition, the NMCC issued its Communication on the Leniency Programme on 19 June 2013, in order to enhance the method to file and review a leniency application under cartel prosecution proceedings. This communication will be further analysed in questions 24 to 33.

Back to top

The Spanish body empowered to resolve cartel proceedings is the NMCC, which is a public law institution. This new authority has taken over the competition commission and the main regulatory bodies, the energy regulator (the National Energy Commission), telecommunications (the Telecommunications Market Commission), the rail sector (the Railway Regulatory Committee), the postal service (the National Commission of the Postal Sector), airports (the Commission of Economic Regulation of Airports) and the audiovisual sector (the State Council for Audiovisual Media). The NMCC is composed of a council consisting of two chambers, each one dedicated to competition and regulatory matters, and four directorates. The directorates are divided into a competition directorate and three regulatory directorates (tele-coms, energy and transport).

The SCA, as amended by Act 3/2013, gives the NMCC powers to pursue investigations, resolve and impose sanctions in competition proceedings and, more specifically, in cartel prosecution proceedings. The act also confers on the NMCC arbitration functions, consultative powers and the task of promoting competition in the market.

The Spanish commercial courts are also entitled to declare the existence of a cartel as they have jurisdiction to declare the infringement of articles 1 and 2 SCA and articles 101 and 102 TFEU.

Back to top

The last relevant change was the adoption of Royal Decree-Law 9/2017, which transposed Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union. Upon the coming into force on 27 May 2017, it introduced a number of significant changes to the SCA and the CPA with a view to enhancing the right to claim full compensation for damage derived from infringements of competition law, for instance, cartels.

Please note that the amendments to the SCA cannot be applied retroactively and the changes introduced in the CPA will apply only to claims initiated after 27 May 2017.

Currently there are no proposals to reform or amend the existing cartel regime. However, the NMCC is in talks to propose some amendments that aim, among other aspects, to clarify the method for calculating fines.

Back to top

Article 1 of the SCA prohibits all agreements, collective decisions or recommendations or concerted or consciously parallel practices that have as their object or effect the prevention, restriction or distortion of competition in all or part of the Spanish market and, particularly, those that:

• directly or indirectly fix prices or any other trading or service conditions;
• limit or control the production, distribution, technical development or investment;
• share the market or sources or supply;
• in trading or service relationships, apply dissimilar conditions to equivalent transactions, placing some competitors at a competitive disadvantage; and
• subordinate the conclusion of contracts to the acceptance of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of these contracts.

The concept of a cartel is defined under the Fourth Additional Provision, second paragraph, of the SCA as:

any agreement or concerted practice between two or more competitors that has the aim to coordinate their behaviour in the market or influence competition parameters through practices including, among others, fixing prices or other commercial conditions, including intellectual property rights; allocating production or sales; sharing markets or customers, including bid rigging, export and import restrictions; and any other anticompetitive measures against competitors.

Back to top

It is not foreseen that there can be exemptions for cartel practices, since these infractions are considered as a very serious infringement of the Spanish competition legislation.

Notwithstanding the above, the SCA foresees a general exemption of the prohibition stated in article 1 of the SCA regarding practices that contribute to improve the production, the commercialisation and distribution of goods and services or to promote technical or economic progress without the need of any prior decision for this purpose, provided that:

• they allow consumers a fair share of its benefits;
• they do not impose on the undertakings concerned restrictions that are not indispensable for the attainment of these objectives; and
• they do not afford participating undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.

In addition, this prohibition is not applied to practices that may arise from the enforcement of a law.

Back to top

Competition rules apply to undertakings, which refer to any entity engaged in an economic activity. Therefore, individuals acting as economic actors are also subject to the SCA.

Back to top

Only conduct that may affect the Spanish market can be reviewed by the NMCC, so its regime cannot be extended to conduct that takes place outside Spanish jurisdiction. In the event that the anticompetitive agreement could be considered as capable of affecting trade between EU member states, the NMCC would apply article 101 TFEU.

Notwithstanding the above, the NMCC is able to collaborate with other competition authorities in order to pursue infringements that may affect the effective competition that take place in other jurisdictions.

Back to top

As stated previously, any conduct that does not affect the Spanish market is not subject to article 1 of the SCA. Despite this fact, as mentioned earlier, the NMCC is empowered to cooperate with other regulators in the fight against infringements that may distort effective competition in other jurisdictions.

Back to top

In order to determine the possible existence of an infringement, the Competition Directorate may proceed with a preliminary investigation, which is not subject to a given deadline. In the course of the preliminary investigation, the Competition Directorate may send information requests as well as carrying out unannounced investigations (dawn raids).

If, after this preliminary investigation, the Competition Directorate considers that there are reasonable signs of the existence of anticompetitive conduct, it will formally initiate sanctioning proceedings. The decision to initiate proceedings will be notified to the interested parties, providing a copy of the complaint to the defendant.

The SCA foresees a two-phase proceeding:

• the investigation phase is carried out by the Competition Directorate. This stage may be subdivided into three phases:
• a preliminary phase upon which the Competition Directorate, based on an ex parte complaint or acting ex officio, may collect all the relevant documentation and data, carrying out dawn raids in order to find evidence of the existence of a potential infringement;
• an intermediate phase, where all the relevant facts obtained in the preliminary phase may lead the Competition Directorate to conclude the existence of a cartel. It may issue a statement of objections (SO) including all its findings. The SO would be notified to all the potential infringing companies so they are able to argue against such accusations and to submit all the documents and evidence that may be relevant; and
• a final phase, based on the fact that the Competition Directorate has finished its investigation and concludes there is a potential infringement, whereupon the case would be submitted to the NMCC council with a proposal for resolution; and
  • the resolution stage, in which the council, after assessing the information gathered by the Competition Directorate and the arguments of the interested parties, must issue a final decision on the infringement and, if that is the case, the imposition of fines.

Note that the entry into force of Law 39/2015 of the Common Administrative Procedure of the Public Administrations seems to allow the Competition Directorate to include a proposal about the amount of the sanctions in the proposal for resolution. Therefore, the companies will be able to give their views on the amount of the sanctions proposed before the case is submitted by the Competition Directorate to the NMCC council.

The maximum term of the sanctioning proceedings is 18 months from the date of the decision to initiate proceedings. The investigation phase usually takes place during the first 12 months, leaving six months for the resolution phase.

Back to top

The SCA provides the NMCC with several ways to detect and sanction anticompetitive agreements, such as information requests and unannounced investigations.

Duties of collaboration and information

All natural or legal persons and the bodies of any public administrations are subject to the duty of collaboration with the NMCC and are obliged to provide all kinds of data and information that they may have and may be necessary for the identification of cartels.

Unannounced inspections

The SCA allows the NMCC to carry out unannounced investigations, not only at the companies’ and associations’ premises, but also at the homes of directors, managers and other members of staff of the companies and associations concerned. The performing of the inspection requires previous consent of the company or, otherwise, court approval.

The personnel authorised to carry out an investigation will have the following investigatory powers:

• to enter any premises, land and means of transport of the undertakings and associations of undertakings as well as the homes of entrepreneurs, managers and other members of the staff of the undertakings and associations of undertakings concerned;
• to examine the books and other records related to the business, irrespective of the medium in which they are stored;
• to take or obtain in any form copies of or extracts from such books or records;
• to retain the books or documents mentioned above for a maximum period of 10 days;
• to seal all business premises, books or records and other business assets for the period and to the extent necessary for the inspection; and
• to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers.

Sanctions for the obstruction of investigations

The SCA considers as an obstruction of the investigatory powers of the NMCC the following conduct:

• the lack of submission and the incorrect, misleading or incomplete submission of books or documents requested by the NMCC;
• the refusal to answer the questions posed by the NMCC or to answer them in an incomplete, inexact or misleading manner; and
• to break the seals affixed by the NMCC’s personnel during the inspection.

These infringements would be considered as minor infringements, sanctioned with a fine of up to 1 per cent of the total turnover of the undertaking concerned. In the event it is not possible to determine the turnover of the infringing company, the fine would be between €100,000 and €500,000.

Back to top

With reference to cartels, the European Commission is exclusively entitled to investigate and sanction these practices where they may affect the European market; therefore, the national competition authorities may be relieved of their jurisdiction. However, the European Commission shall require the NMCC for assistance on its investigation duties in the prosecution of these practices.

In this sense, the NMCC must inform the European Commission of the submission of a leniency application in relation to a cartel capable of affecting trade between EU member states in order to determine the authority best placed to investigate the presumed cartel and to take the appropriate investigative steps. In similar terms, the NMCC will act in the same way if the applicant indicates that it has submitted or intends to submit a leniency application to other competition authorities of EU member states. Further, the NMCC must collaborate and cooperate in investigations that are being carried out by any other national authority. The NMCC is empowered to exchange information (including confidential information) that may be used as evidence for the enforcement of articles 101 and 102 TFEU with the European Commission and other national authorities.

Back to top

As mentioned in the previous question, the national competition authorities must collaborate and ensure their cooperation in relation to cartel investigation matters.

Back to top

The NMCC is the body entitled to investigate and sanction cartels. The regional competition authorities are also entitled to investigate and sanction cartels but they only have jurisdiction over cartels having effect within their respective territory.

In addition to it, as mentioned in question 2, the commercial courts are entitled to apply articles 1 and 2 of the Competition Act, as well as articles 101 and 102 of the TFEU. Therefore, any individual or company may bring an action before the commercial courts to seek a judgment stating that the defendants have infringed competition law, for instance, by participating in a cartel.

Back to top

In accordance with Spanish legislation, the burden of proof rests on the party that alleges an infringement of the competition provisions. In this case, the burden of proof falls on the NMCC since the proceedings are initiated by the NMCC, whether ex officio or at the request of a party. Additionally, there is no specific level of proof required by Spanish legislation in order to determine the existence of cartel infringements.

Back to top

As in any other competition infringement, the burden of proof of the existence of a cartel rests on the NMCC. A cartel can be proved by using either direct evidence or circumstantial evidence.

Members of an alleged cartel that claim the benefit of an individual exemption must bear the burden of proving that the conditions for an individual exemption are met. It is practically impossible for cartel members to benefit from an individual exemption.

Back to top

No appeal by administrative procedure may be lodged against the resolutions and acts of the council of the NMCC and judicial appeals may only be lodged in the terms foreseen in the Administrative Jurisdiction Act 29/1998, of 13 July, before the National High Court. According to such terms, infringing parties may lodge a judicial appeal against the decision of the competition authority within a period of two months starting from the day after the notification of the decision.

In general terms, appealing does not lead to a suspension of the sanctions imposed by the administrative body (NMCC), unless the involved companies justify serious damage stemming from the imminent execution of the sanction and the National High Court accepts these arguments as valid to suspend the payment of the fine.

Appeals against the decision of the National High Court on points of law may be only lodged with the Supreme Court. In this sense, the National High Court is entitled to review the agency’s findings of fact, the legal assessment and penalties. By contrast, the Supreme Court focuses only on points of law unless factual findings are found to be clearly erroneous.

Back to top

The SCA does not foresee the application of criminal sanctions (such as professional remedies, disqualification orders and jail judgments) for breaches of competition law.

Back to top

According to the SCA, the NMCC can impose fines on the economic agents, companies or associations that intentionally or by negligence infringe competition regulation. For these purposes, the SCA classifies the infringements according to their seriousness as minor, serious and very serious. Cartels between competing undertakings are classified as very serious infringements.

The amount of the fine will depend on the seriousness of the infringement. Thus, the NMCC may impose fines of up to 10 per cent of the total turnover of the infringing company in the preceding business year in the case of very serious infringements and fines of up to 5 per cent of the total turnover of the infringing company in the preceding business year in the case of serious infringements. When the turnover of the infringing company cannot be calculated, the NMCC can impose a fine of up to €10 million.

In addition to the fine that would be imposed on the company, the SCA foresees a personal sanction of up to €60,000 for each of the legal representatives of the company or the members of the management bodies who have participated in the anticompetitive practice. In fact, in 2016 the NMCC issued its first resolutions fining the legal representatives of the companies that were liable for the cartels.

Furthermore, the SCA sets out the criteria that are taken into account in order to determine the amount of the fine:

• scope and characteristics of the affected market;
• market shares of the infringing companies;
• scope and duration of the infringement;
• effects of the breach on the rights and legitimate interest of consumers or on other economic operators; and
• the illicit benefits obtained as a consequence of the infringement.

The SCA also foresees a list of mitigating and aggravating factors.

As regards infringements of article 101 of the TFEU, they could be sanctioned with fines up to 10 per cent of the total turnover in the preceding business year of the company concerned.

The sanctioning power of the NMCC shall lapse after four years in the case of very serious infringements. In cases of application of article 101 of the TFEU, the expiration period would be of five years. In this regard, it is important to highlight that the term of the lapse shall be counted from the day when the infringement has been committed or, in the case of continued infringements, from when they have ceased.

Back to top

The NMCC published a communication on the method of calculating fines deriving from the infringements of articles 1, 2 and 3 of the SCA in February 2009. These guidelines provided a three-step method for quantifying the fines inspired by the methodology used by the European Commission within the scope of Council Regulation (EC) No. 1/2003.

However, the Supreme Court issued a judgment in January 2015 finding that this method was not applicable under Spanish law. In summary, the Supreme Court held that:

• the 10 per cent limit on the annual turnover of the company (or 5 or 1 per cent depending on the seriousness of the infringement) is the maximum sanction; and
• the percentage must be calculated on a company’s total annual turnover and according to the criteria set out in the SCA.

These criteria are the following:

• dimension and characteristics of the market affected by the infringement;
• market share of the undertaking responsible;
• the scope and duration of the infringement;
• the effect on consumers, users and other economic operators;
• the illicit profits obtained because of the infringement; and
• the existence of any aggravating or mitigating circumstances.

The main aggravating factors are:

• the repeated commission of infringements established in the SCA;
• the role of leader in, or instigator of, the infringement;
• the adoption of measures for enforcing or safeguarding the achievement of the unlawful conduct; and
• the failure to collaborate with, or the obstruction of, inspections.

The main mitigating circumstances are:

• the undertaking of actions that bring about an end to the infringement;
• the effective non-implementation of the prohibited conducts;
• the undertaking of actions intending to remedy the harm caused; and
• the active and effective collaboration with the NMCC outside the scope of the leniency programme.

From the date of the above-mentioned judgment, many resolutions have been appealed successfully before the High Court on the basis that the amount of the fines imposed had been erroneously calculated since it had been done according to the communication on the method for calculating fines. The High Court has already issued several judgments in which it orders the NMCC to recalculate such fines according to the criteria set by the Supreme Court.

Back to top

Debarment from government procurement procedures is not automatically applicable in the case of sanctions arising from infringements of competition law. Pursuant to the Public Sector Contracts Law, companies that have been sanctioned for a serious infringement related to distortion of competition by a final judgment will not be able to enter into any kind of public sector agreements. However, this prohibition must be expressly imposed in the same resolution declaring the infringement, or if it is not the case, in a latter proceeding initiated for this purpose. On a general basis, debarment from government procurement cannot exceed a three-year period.

Back to top

In this regard, sanctions for cartel activities are investigated and declared by means of an administrative proceeding. However, as mentioned in question 2, the commercial courts are also entitled to investigate and decide in relation to cartel matters, such as the prosecution of practices that may alter prices in the market through criminal proceedings.

In addition, the SCA foresees that, in the case of the existence of a criminal preliminary ruling that cannot be dispensed or that directly conditions the content of the pronouncement, it will determine the suspension of the proceedings until it is ruled on by the corresponding criminal court.

Back to top

The Council of Ministers approved Royal Decree-law 9/2017, of 26 May 2017, which implements Directive 2014/104/EU on antitrust damages actions into the Spanish legal framework. The transposition has introduced important amendments to the CPA and the SCA. Private damage claims are available for both direct and indirect purchasers, and the compensation includes the right to indemnification for actual loss and loss of profit, plus the legal interests since the claim was submitted. Note that the amendments to the SCA cannot be applied retroactively and the amendments to the CPA are only applicable to claims initiated after 27 May 2017.

Regarding costs, the CPA states that the general rule is that they shall be imposed on the party who has had all of its pleas rejected, unless the court considers that the case posed serious doubts owing to its complexity. If the claim is estimated partially, the parties shall bear their own costs and the common costs shall be shared equally.

The costs of the procedure are composed of:

• attorney’s fees;
• attorney-at-law’s rates (fixed amount depending on the quantum of the procedure);
• taxes and other duties for exercising jurisdictional right; and
• expert’s fees (bill invoiced to the party).

This total amount shall not exceed one-third of the quantum of the proceedings.

The main changes introduced to the SCA are the following:

• Recognition of the right of harmed parties to obtain full compensation for damage suffered.
• The introduction of joint and several liability for all infringers for the damage caused to the harmed parties. Therefore, any harmed party can claim full compensation for damage to any of the undertakings intervening in the cartel. Nevertheless, there are two exceptions to this rule, one relating to SMEs (according to the definition contained in Commission Recommendation 2003/361/EC, of 6 May 2003, regarding the definition of micro, small and medium-sized enterprises) and the other relating to undertakings that are exempted from the payment of a fine owing to their participation in a leniency programme.
• The establishment of a limitation period of five years for actions for damages arising from infringements of competition law.
• The binding nature of any competition infringement declared by a final decision of a Spanish competition authority or court, for the purposes of an action for damages brought before national courts.
• The introduction of the rebuttable presumption that cartels always cause harm and the implementation of certain rules in order to make it easier for claimants to calculate and quantify the damage suffered.
• The implementation of a new consensual dispute resolution regime that has the aim of fostering consensual agreements with infringers.
• The introduction of the passing-on defence, which establishes that the right to compensation granted to the injured party refers only to the overcharge really suffered and that was not passed on along the supply chain. Moreover, the SCA also sets the possibility for indirect purchasers to claim compensation for the harm caused when direct purchasers have passed on the overcharge generated by the violation of competition rules. The burden of proving such passing-on falls to the claimant, although there is a rebuttable presumption that the indirect purchaser has proved the overcharge if it meets certain criteria.

The changes introduced to the CPA mainly refer to the disclosure of evidence. Not only can the harmed party request such disclosure, in addition the defendant in an action may request the disclosure of evidence by the claimant or third parties in order to prepare its defence, especially if it is planning to apply the passing-on defence. When requesting the disclosure of evidence, it must always be duly justified. In the case of the plaintiff, it must submit a well-founded justification including reasonably available facts and enough evidence to support the credibility of the claim. In the case of the defendant, it must present such justification in relation to its defence.

Although it is too early to say with certainty, the impact on enforcement activity is likely to be significant.

Back to top

Class actions are available in Spain in some limited cases. The CPA clearly establishes the possibility of collective legal standing in cases involving only the defence of consumers’ and users’ interests. Consumer associations can protect the interests of their associates and even the general interests of consumers and users; therefore, the Spanish Consumers Act allows consumers and final users to file collective proceedings through consumer associations. This could be applicable to antitrust cases, particularly those involving the declaration of an antitrust infringement or injunctions.

This possibility was partially recognised in Spain by means of the CPA, which recognises the rights of consumers to claim against a cartel. A collective action may be more efficient because several consumers or companies affected by a cartel may decide to join forces in a joint or collective action. A collective action could be advantageous to plaintiffs as they can distribute the costs, risks and efforts over several parties instead of one individual plaintiff.

Back to top

In this regard, according to the SCA, the RDC and the Communication on Leniency Programme issued by the NMCC on 19 June 2013, the NMCC shall exempt a company that is allegedly involved in a cartel from the payment of the fine if:

the company is the first to provide evidence that, according to the NMCC, will allow the NMCC to order an inspection, provided that, at the time of the submission of evidence, the NMCC does not already have sufficient evidence to order an inspection; or

the company is the first to provide evidence that, according to the NMCC, may enable it to find an infringement of article 1 in relation to a cartel, provided that, at the time of the submission, the NMCC does not have sufficient evidence to find an infringement and an exemption to a company or individual has not been granted in accordance with point (i).

Notwithstanding the above, only the first company that provides the NMCC with sufficient evidence about the existence of a cartel will obtain full exemption from payment of the fine.

Back to top

Yes, there is a formal partial leniency programme for parties that cooperate after an immunity application has been made. The NMCC may reduce the fine to a party if it:

• provides evidence of the suspected infringement that represents significant added value with respect to the evidence the NMCC already has;
• cooperates fully, continuously and expeditiously with the NMCC throughout the administrative investigation procedure;
• brings its participation in the alleged infringement to an end at the time that it submits the evidence of the existence of the cartel, except in those cases where the NMCC deems necessary that its participation continues in order to preserve the efficacy of an inspection; and
• has not destroyed evidence related to the application for exemption nor has disclosed, directly or indirectly, to third parties other than the European Commission or other competent authorities, the existence of its application or part of its contents.

Back to top

Being the second cooperating party is also relevant as it can benefit from fine reductions. The starting point is a reduction of between 30 per cent and 50 per cent for the second cooperating party and it reduces for the subsequent cooperating parties (between 20 per cent and 30 per cent for the third cooperating party and up to 20 per cent for the subsequent cooperating parties).

Back to top

Any applicant for leniency (exemption or reduction of a fine) must submit its exemption or reduction application before the Cartels and Leniency Unit (CLU) of the Competition Directorate of the NMCC. Formal leniency applications may be filed directly by the company or natural person or through their representatives.

The applications will only be registered after they are received at the Registry of the NMCC. The order of registration will be set up according to the exact date and hour of submission of any application with the Registry. Applications will be assessed on a chronological basis, according to their exact time of registration.

Back to top

The granting of an exemption or reduction by the NMCC is subject to the following conditions, which must be met by the company (or, if applicable, by the natural person) that has submitted the leniency application:

• the applicant must cooperate fully, continuously and expeditiously with the NMCC throughout the administrative investigation procedure. Such a cooperation obligation implies that the applicant must:
• provide the NMCC immediately with all the relevant information and evidence that may be under its possession regarding the existence of the cartel;
• immediately answer any request for information made by the NMCC in order to clarify the relevant facts of the case;
• facilitate oral interviews between the NMCC and present (and, if feasible, former) executives and employees of the company;
• not destroy, hide or falsify any documents or relevant evidence regarding the cartel; and
• not disclose to any third parties the existence or the contents of the leniency application before the SO is sent by the NMCC to the affected companies, unless otherwise agreed with the NMCC;
• the applicant must bring its participation in the alleged infringement to an end at the time that it submits the evidence of the existence of the cartel, except in those cases where the NMCC deems necessary that its participation continues in order to preserve the efficacy of an inspection;
• the applicant must neither have destroyed evidence related to the application for exemption nor have disclosed, directly or indirectly, to third parties other than the European Commission or other competent authorities, the existence of its application or part of its contents; and
• the applicant must not have adopted any measures to oblige other undertakings to participate in the infringement.

Back to top

All leniency applications and their contents (including the identity of the applicant) shall be treated as confidential information by the NMCC, which must file this documentation in a separate folder when classifying the information corresponding to the relevant case file. However, the affected companies will have access to the information deemed essential in order to reply to the SO formulated by the NMCC.

In the event of judicial review, when the leniency application submitted in the infringement proceeding is sent to the National High Court, the NMCC will expressly identify the statements made by the leniency applicant, no copies of which will be allowed. If documents submitted by a leniency applicant are required by a competent court to examine the NMCC’s actions before the resolution is issued that puts an end to the administrative proceeding in which the leniency application was filed, those documents will be remitted on a confidential basis, with an express indication that they cannot be communicated to possible interested parties or third parties, given the special protection the SCA guarantees for leniency applications and the serious consequences that could arise from disclosure of the filing or content of the leniency applications.

As stated in the NMCC’s Communication on Leniency Programme in relation to civil damages actions brought in relation to cartel infringements prosecuted in competition proceedings in which leniency applications have been submitted, the NMCC will not provide copies of the statements of the leniency applicants, as such disclosure would impair the effectiveness of the leniency programme and weaken the fight against cartels. Moreover, by virtue of the CPA courts cannot request any party or third party to disclose statements made in the framework of a leniency application.

Back to top

As stated in the SCA, the NMCC may resolve the termination of sanctioning proceedings in relation to agreements and prohibited practices when the alleged offenders propose commitments in order to resolve the effects on competition caused by the conduct covered by the proceedings and the public interest is sufficiently guaranteed. However, the Guidelines on Termination by Commitments of Infringement Procedure published by the NMCC set out that, as a general rule, a plea bargain will not be initiated when an infringement of article 1 of the SCA relates to a cartel.

Since the decision to enter into a settlement is an administrative act, according to the Administrative Jurisdiction Act 29/1998, of 13 July, it is possible to file a judicial appeal against such decision.

Back to top

Exemption from the payment of a fine imposed upon an undertaking shall also benefit its legal representatives or the members of the management bodies who have taken part in the agreement or decision, provided they have cooperated with the NMCC.

Back to top

The NMCC recommends that applicants submit their applications in a sealed envelope, which, after registration at the Registry of the NMCC, shall be only opened by CLU officials. Applications shall consist of a template (the NMCC has included this template as annexe I of its Communication on Leniency Programme, available on the NMCC website (www.cnmc.es)), which should be signed by the applicant with the relevant information and documentation regarding the existence of the cartel and its main characteristics. According to the provisional guidelines on leniency applications, the leniency applications must be accompanied by, at least, the following information:

• identification of the leniency applicant: name and contact data, a brief description of the applicant and, if necessary, identification of the representative and a copy of the power of attorney;
• participants in the cartel: names and contact data, a brief description of the companies and the form and extent of their participation in the agreement;
• detailed description of the cartel: objective, activities and functioning, products, services and territories affected, duration and nature of the cartel, specific dates, locations, content and participants in meetings, etc;
• evidence relating to the cartel in the possession of the applicant or available to it within a reasonable period; and
• actions adopted (eg, a declaration that the applicant has not disclosed to third parties its intention to submit a leniency application, a declaration that the applicant has not destroyed evidence related to the leniency application).

Each leniency application must be submitted in two versions: the original (to be kept by the NMCC) and a copy (to be kept by the applicant). Both versions should be marked with an adhesive receipt seal by the Registry of the NMCC indicating the exact date and hour of reception of the documents. The NMCC, if requested by the applicant, can also provide it with a document confirming the receipt of its leniency application.

If previously agreed with the CLU, applicants may also submit oral leniency applications, which shall be recorded at the NMCC’s premises. The transcription of the application shall be immediately registered in the Registry of the NMCC, indicating the exact date and hour of such registration.

Once the CLU receives an exemption application, it will review its contents and confirm to the applicant whether the exemption can be granted. This shall only be confirmed by the council of the NMCC at the end of the investigation procedure and provided that the applicant complies with all the cooperation conditions after submission of the application. If the exemption of the fine is not possible (in cases where a previous exemption has been submitted regarding the same cartel, or where the NMCC was already aware of the existence of that cartel), the CLU shall allow any applicant to withdraw its leniency application or to submit an application for a reduction in the fine.

Back to top

There are no review or ongoing policy assessments in relation to the leniency regime.

Back to top

The opening of a sanctioning proceeding must be notified to the interested party and the minimum information to be included in the notification must be: identification of the presumed infringers and of the complaints, where such exist; reasons for initiating the proceeding; examining officer or officers and, if applicable, examining clerk, indicating the rules for recusal and if applicable, the persons who have standing as interested party.

Without prejudice to it, any interested party is entitled to have access to all the information contained in the file except those documents, or part of them, that have been declared as confidential.

Back to top

Counsel may represent the corporation and its employees at the same time, provided that no conflict of interest exists between the parties. This should be decided on case-by-case basis.

Back to top

As with the previous question, it is possible for one legal counsel to represent various defendants, unless there is any kind of conflict of interest between the companies. This should be decided on a case-by-case basis.

Back to top

There are no specific regulations forbidding a company from paying a penalty imposed on its employees. Nevertheless, an undertaking is not obliged to assume the legal costs and penalties imposed on its employees in cartel investigation proceedings. However, companies may pay employees’ costs if they wish.

Back to top

With regard to this issue, article 15(c) of the Spanish Corporate Income Tax Act expressly provides that fines and penalties shall not be considered as tax-deductible since they arise from an illegal practice. If the Spanish Tax Institution considered these as tax-deductible, it could be understood as a way of financing the mentioned penalty by the authorities and the penalties would not be as effective. On the other hand, private damages awards can be considered as deductible for tax purposes.

Back to top

In Spain, sanctions imposed on a corporation or an individual do not take into account penalties imposed in other jurisdictions.

Regarding private damage claims, the lis pendens rule established in the Brussels I Regulation is applicable. This means that if there are several proceedings dealing with the same cause of action and the same parties before the courts of different member states, all courts other than the court first seized shall immediately suspend its proceedings until the court first seized decides whether it has jurisdiction.

Back to top

As mentioned in questions 24 to 33, the optimal way to get a fine decreased is cooperating and contributing with the NMCC during the investigation phase and seeking to benefit from the leniency programme. In addition, please note that there is no specific provision under the Spanish competition regulations that considers the existence of a compliance programme as an element affecting the level of the fine to be imposed.

Moreover, recent amendments introduced to the SCA establish that competition authorities, when calculating the fine before issuing their decision, must take into account whether the defendant effectively granted compensation to harmed parties for the damage caused by its infringement, as it could be regarded as a mitigating factor.

Back to top

The actions carried out by the NMCC to detect and prosecute anti-

competitive practices, particularly cartels, and to promote competition in the markets, need to be adapted to the latest transformations derived from the application of new digital technologies and changes applied in the national and community regulatory framework.

In order to do so, the NMCC will:

• strengthen the defence of NMCC resolutions before the courts;
• strengthen legal and economic foundations of resolution proposals from the Competition Directorate and Council;
• develop guidelines on the submission of economic reports in records;
• elaborate on criteria to be followed by the NMCC in relation to the reports on the quantification of compensations that infringers must satisfy;
• analyse the new markets linked to the digital economy: technological platforms, algorithms and price, access and use of data policies, electronic commerce and online advertising;
• strengthen the surveillance of some sectors and operators, such as service payments from the financial sector, sports rights, television advertising, the pharmaceutical and hospital sector, the port services sector and the agricultural sector;
• contribute to the improvement of the evaluation realised by the authorities on the framework of legislation about competition and market unity;
• promote - by reinforcing the analysis and training actions and cooperation - the improvement of public procurement in Spain, through the use of best practices in terms of minimising distortions on the competition and efficient economic regulation by the contracting bodies of public administrations; and
• enhance the area of active legitimation by improving detection, evaluation and action before acts or dispositions of the public administrations that hinder effective competition, and promote improved collaboration and coordination with the competition authorities of the autonomous communities.

Furthermore, the NMCC has launched several measures in order to strengthen its legal actions. Among others, it has agreed to hold oral hearings again in the framework of sanctioning proceedings that, owing to their complexity, require it, something that has not been done since 2010.

In addition, the informal working group that carries out screening tasks in the NMCC to detect anticompetitive behaviours, especially in the context of public tenders, will be formalised this year with the creation of an Economic Intelligence Unit in the Competition Directorate. This unit will be led by experts in cartels, and will be staffed by people specialised in statistics, computer science and quantitative techniques for database treatment.

Finally, we summarise below the main decisions in 2018 concerning cartels:

• On 8 March 2018, 10 courier and parcel services companies were sanctioned with a fine of €68 million due to customer allocation. The cartel members committed not to make commercial offers to any of the competitor’s customers. In total the NMCC discovered nine different cartels (Exp/0578/16 Business Messaging and Parcels Services).
• On 3 May 2018, the NMCC decided to impose a total fine of €7.12 million on five different media companies and €109,000 on three of their directors or legal representatives. The NMCC proved that the sanctioned companies had exchanged sensitive commercial information for one-and-a-half years, in order to allocate the public tenders that were convened for institutional advertising campaigns from the General State Administration (Exp/0584/16 Media Agency).
• On 12 July 2018, the NMCC decided to impose a fine on two companies engaged in the purchase of used batteries for their participation in a cartel. From 2008 to 2012 the companies carried out a common strategy to fix the purchase prices of used car batteries. The companies maintained a continuous flow of contact through emails, calls and meetings to agree a common commercial strategy in order to avoid a ‘price war’. These types of behaviours caused a distortion of competition, which adversely affected the suppliers in a market where purchasing firms have a significant bargaining power with suppliers given by the characteristics of the relevant market. Therefore the NMCC imposed a total fine of €5.3 million on the companies (Exp/0569/15 Automotive Batteries).
• On 26 July 2018, 11 companies were sanctioned for being part of a cartel related to the supply of computer and data processing services for the Public Administration. The companies shared out customers, agreed on prices and terms of trade, and exchanged sensitive commercial information to make public tenders more expensive. The cartel lasted 15 years and the total amount of fines imposed was €29.9 million (Exp/0565/15 Tenders for Computer Applications).

Back to top