Spain's Audiencia Nacional, the court of appeal for antitrust cases, has annulled the Spanish Competition Commission's ("SCC") fine of €120 million (US$160 million), the highest fines to date, imposed on eight insurance companies allegedly involved in a price fixing cartel in Spain. It is unusual for the SCC to be reversed on the merits of its decisions.

Background

In November 2009, the SCC ruled that insurers had fixed prices on building insurance: Asefa, Caser, Mapfre Empresas, Mapfre Re, Scor, Suiza Ibérica, Swiss Re, and Múnchener. The SCC declared that the insurers had fixed the pricing for insurance on inherent defects in new buildings, through the use of price guides or manuals in insurance policies, over the course of six years.

Three of the insurers – Caser, Scor and Múnchener – appealed the SCC's ruling to the Audiencia Nacional, which overruled the SCC's decision and revoked the previously imposed fines. The High Court, through parallel proceedings, concluded that there was insufficient evidence to prove that the insurers engaged in anticompetitive conduct.

In Caser's appeal, the Court determined that, even if the insurer had acknowledged the potential anticompetitive nature of the conduct, under the circumstances the same conduct could have been interpreted as legally exempt. The Court also concluded that the insurer did not participate in the alleged unlawful agreements, but only monitored the implementation of the agreements, which the insurer was free to do.

In the Scor and Múnchener appeals, the High Court determined that there was insufficient evidence to demonstrate the anticompetitive effects of the alleged conduct. In Scor's appeal, the High Court concluded that the SCC had failed to satisfy its burden of proof that the differences in price (fees, tariffs, recharges, and discounts) were the result of the alleged unlawful agreements, as opposed to conditions in the insurance industry, including the effects of the real estate boom that took place in Spain or as a result of the regulations on insurance markets, which created barriers to entry. While the insurers demonstrated justifications for price increases, the SCC merely assumed that any price increases were the result of an unlawful agreement.

Similarly, in Múnchener's appeal, the High Court acknowledged that certain particularities in the insurance markets make it necessary to exchange risk information with competitors. The High Court also recognized that there were notable differences between the conditions applied by the various insurers. As a result, the High Court concluded that the insurers' conduct was not unlawful.

Implications

Aside from the substantial amount of fines at issue, the High Court's annulment of the SCC's decision is noteworthy because it represents a significant defeat for the SCC. Although the High Court has overruled decisions of the SCC in the past, prior decisions were overruled on procedural grounds or the lack of proportionality of the fine to the alleged misconduct. The fact that the High Court here has overruled the SCC for lack of sufficient evidence is rather exceptional.

The SCC has announced that it will appeal the High Court's December 2012 decision to the Supreme Court of Spain.