The Spanish National Competition Commission (“NCC”) shelved two cases involving an alleged abuse of a dominant position in the telecommunications market due to lack of evidence. In both cases, the Council of the NCC reiterated the high standard of proof required to prove the existence of abusive conduct.
In the first case on shared-cost calls, the NCC investigated an alleged abuse of a dominant position consisting of predatory pricing (selling below cost-price) to drive competitors out of the market. This case was shelved because the Council of the NCC considered that the conduct in question could not exclude competitors from the market.
In the second case on call diversion, the NCC shelved the alleged abuse of a dominant position complaint made against various mobile telephone operators on the basis that there was no proof that third parties had been charged discriminatory tariffs that would give rise to abuse.
The two decisions relating to the telecommunications market are clear examples of the importance of adequate coordination between industry regulators, in this case the Telecommunications Market Commission (Comisión del Mercado de las Telecomunicaciones, “CMT”) and the competition authorities. In fact, in these decisions, the NCC repeatedly referred to the industry regulation imposed by the CMT and the CMT’s reports analysing the parties’ market position and their conduct. We will have to wait until the recently created National Markets and Competition Commission (Comisión Nacional de los Mercados y la Competencia) begins to operate to see if unifying the competition authority and various industry regulators will lead to a different analysis of the conduct of operators in regulated sectors.