In 2008, the Spanish National Competition Commission (“NCC”) became aware of anticompetitive practices incurred by several manufacturers of personal hygiene gels through a leniency application submitted by one of the manufacturers that attended the meetings of this group. One representative of Colomer participated in one of such meetings in which another company informed its competitors of its intention to reduce the size of the 750ml containers and maintain its current prices, inviting the remaining companies attending the meeting to do the same. The representative of Colomer had a passive role in that meeting and subsequently informed the other companies attending in unequivocal terms about its intention not to take part in the agreement. In spite of this, Colomer was summoned for a second meeting held by the cartel in February 2006, which it did not attend.
The NCC decided to initiate disciplinary proceedings against Colomer, but the Investigations Division later proposed to the NCC that all proceedings against Colomer should be closed because Colomer’s participation in the cartel had not been proven in the NCC’s view. The NCC sanctioned the gel manufacturers that participated in the cartel, except for Colomer. However, the NCC instructed the Investigations Division to start new disciplinary proceedings against Colomer in order to investigate its potential liability in the cartel that had been sanctioned.
The NCC subsequently digressed from the Investigations Division’s opinion and sanctioned Colomer with a EUR 170,300 fine for its participation in a cartel and not distancing itself from it in a sufficiently clear manner.
In its decision of 28 June 2013, the Spanish National Court held that by postponing the resolution of the matter regarding Colomer and its referral to new disciplinary proceedings, the NCC breached the principle of legality, which the public authorities must abide by, since its acceptance would have avoided the expiry of the proceedings.