The Spanish Ministry of the Economy has opened a public consultation process regarding the transposition into Spanish law of Directive 2019/11 to empower the competition authorities of the Member States to be more effective enforcers of competition regulations (the "Directive"), approved in January 2019. The public consultation process will be open until 8 September 2019. The main aim of the Directive is to implement a series of measures to ensure the independence of the National Competition Authorities ("NCAs") and to provide them with the tools and authority necessary to enforce competition rules uniformly and effectively across the different Member States.
Transposing the content of the Directive into Spanish legislation will bring about a change to competition regulations in Spain, as fundamentally contained in two laws: Spanish Competition Law 15/2007, of 3 July (Ley 15/2007, de 3 de julio, de Defensa de la Competencia) and Law 3/2013, of 4 June, on the creation of the Spanish Markets and Competition Commission (Ley 3/2013, de 4 de junio, de creación de la Comisión Nacional de los Mercados y la Competencia).
As well as including the new elements of the Directive in Spanish legislation, the text of the public consultation also opens the door to including other elements not included in the Directive but that "could be considered expedient given its spirit and the objectives sought". By doing so, the Ministry of the Economy could well be heeding the recent requests made by Spain's Competition and Markets Commission (the "CNMC") and using the reform to include elements that were not provided for in the Directive 2019/1, such as settlement agreements (ie, agreements by which parties under investigation admit to charges in exchange for a reduction of the fines imposed).The innovative elements of the Directive that, according to the public consultation, are to be included in Spanish legislation are related to increasing the maximum fines that can be imposed, new inspection powers and the treatment of limitation periods for conducts that affect the different Member States:
- One new element of the Directive that will be transposed into Spanish legislation is a provision to empower the NCAs to establish priorities in enforcing articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU"), enabling them to reject complaints that, in their judgement, are not of particular relevance with regard to the enforcement of competition law, thereby not requiring investigation by the regulator.
- Another new element of the Directive that will have an impact on Spanish law is the possibility of NCAs conducting interviews with any representative of an undertaking or association of undertakings who may possess information relevant to the application of articles 101 and 102 TFEU. There is also the possibility of imposing periodic penalty payments on any person failing to attend an interview.
- The Directive also includes provisions on the amount of fines. NCAs may impose on undertakings and associations of undertakings in breach of articles 101 and 102 TFEU a maximum fine of not less than 10% of that undertaking's or association's total worldwide turnover in the year prior to the decision.As a result, transposing the Directive will increase the maximum limits of fines imposed for the following conducts, which up to now were subject to a fine of up to 5% of the breaching undertaking's total turnover: (i) the making of collective arrangements, decisions or recommendations, concerted practices or practices that are consciously aligned among companies that are not in competition with each other, whether real or potential (ie, vertical agreements); and (ii) abuse of a dominant position not considered to be very serious.
- From a fining perspective, transposing the Directive will mean that limitation periods for NCAs to impose fines will be interrupted for the duration of proceedings before NCAs of another Member State in respect of an infringement concerning the same practice or conduct prohibited by Article 101 or 102 TFEU. The limitation period will be interrupted from the notification of the first formal investigative measure to at least one undertaking subject to the enforcement proceedings, and it shall apply to all the undertakings involved. The interruption will end on the day on which the NCA issues its decision.
- The transposition of the Directive will also mean reviewing and bolstering the system of incompatibilities and conflicts of interest applicable to the CNMC's staff and decision-making bodies, and strengthening cooperation among the NCAs, including providing mutual assistance to collect fines.