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What is the general attitude of business and the authorities to competition compliance?
Large companies tend to have competition compliance programmes. These include training sessions, eLearning software, mock dawn raids, compliance guidelines, etc. The importance of the programmes for companies operating in Spain has grown significantly in recent years.
The Spanish Competition Authority considers that, as a general rule, competition compliance is positive and promotes it (for instance, by organising conferences on the subject or, as mentioned in question 4, by reducing the amount of fines resulting from competition law infringements).
Government compliance programmes
Is there a government-approved standard for compliance programmes in your jurisdiction?
No, Spain has no government-approved standard for compliance programmes.
Applicability of compliance programmes
Is the compliance guidance generally applicable or do best practice and obligations depend on a company’s size and the sector of the economy it operates in?
No compliance guidance generally applies in Spain. However, the practice of the Competition Authority sets some very broad requirements that must be met, if a compliance programme is to be taken into account to reduce the amount of a fine (see question 4).
In order to determine whether the requirements are met, the specific circumstances of the case need to be analysed, thus the company’s size and the sector in which the undertakings operate will likely be relevant.
If the company has a competition compliance programme in place, does it have any effect on sanctions?
Yes, the existence of a competition compliance programme can affect the fine or penalty imposed on an undertaking. Note, however, that the mere existence of the programme does not automatically mean that a fine will be reduced (especially if the infringement derives from the programme’s failure).
With regard to programmes implemented prior to an infringement, the Spanish Competition Authority has stated that the existence of a compliance programme can be considered a mitigating circumstance only if it can be concluded that the programme was effectively implemented and that internal controls and significant sanctions were imposed on those infringing the rules established in the programme (decision of 23 July 2015, case S/0482/13).
In addition, the Spanish Competition Authority has accepted that implementing a programme (that fulfils the requirements mentioned above) after the infringement proceedings have started may be taken into consideration to reduce the amount of the fine (decision of 6 September 2017, case S/DC/0544/14). In fact, the implementation of such a programme was taken into account to reduce the fine in the decision of 17 September 2015, case SNC/0036/15.
Implementing a competition compliance programme
Commitment to competition compliance
How does the company demonstrate its commitment to competition compliance?
There is no specific guidance on how companies should prove their commitment to competition compliance. However, the Spanish Competition Authority has referred in broad terms to the need to effectively implement the competition compliance programme, establish internal controls and impose significant sanctions to those infringing the rules established in the programme in order to reduce the amount of a potential fine (see question 4).
What are the key features of a compliance programme regarding risk identification?
The key features of a compliance programme regarding risk identification are essentially the following: carry out regular audits to enable the undertaking to detect any possible competition law infringement, provide competition law training to staff to give them the means to be able to identify potential infringements, establish a whistle-blower programme that allows employees to safely report competition law infringements and appoint a compliance manager that guarantees the effective implementation and application of the compliance programme.
What are the key features of a compliance programme regarding risk assessment?
The key feature of a compliance programme regarding risk assessment is analysing the potential areas of risk in view of the sector in which the undertaking operates and the frequency and the nature of the contact between the undertaking’s staff and its stakeholders. The existence of a trade association (especially if it gathers information from the undertakings and prepares statistical data) is especially relevant for these purposes.
What are the key features of a compliance programme regarding risk mitigation?
A key feature of a compliance programme regarding risk mitigation is the regular review of any competition law risks identified by the undertaking’s in-house legal department and by external legal counsel.
Compliance programme review
What are the key features of a compliance programme regarding review?
The key features of a compliance programme regarding review are the existence of eLearning programmes and training sessions that employees regularly carry out and attend and the proactive follow-up by managers of the implementation and correct application of the programme. It is also important to review the programme periodically to adapt it to any changes that may have occurred in the field of competition law.
Dealings with competitors
Arrangements to avoid
What types of arrangements should the company avoid entering into with its competitors?
All types of arrangements between competitors should be carefully assessed to make sure they are consistent with competition regulations. In general, all types of agreements, either express or tacit, regarding the allocation of clients or territories, pricing arrangements or exchanges of confidential information are contrary to competition regulations.
What precautions can be taken to manage competition law risk when the company enters into an arrangement with a competitor?
Parties should make sure that the agreement does not allow them to set prices or allocate customers or markets between them. In addition, it is also advisable to have measures aimed at ensuring that no confidential information is exchanged between the parties as a result of the agreement. Joint supply or purchase agreements should be handled with caution.
What form must behaviour take to constitute a cartel?
Royal Decree-Law 9/2017, which transposed the EU Damages Directive, modified the legal definition of cartel as it was previously established in the Spanish Competition Act. The Spanish Competition Act now defines ‘cartel’ as:
‘any agreement or concerted practice between two or more competitors which aim to coordinate their competitive behaviour in the market or influence the competitive process through practices such as, among others, fixing or coordinating purchase or sale prices or other commercial terms, even as regards intellectual and industrial property; allocation of production or sale quotas; market or client sharing, including collusion regarding tenders, restrictions on imports or exports or measures adopted against other competitors that hinder competition.
This new definition does away with the secrecy requirement previously required and broadens the legal concept to include behaviour consisting of concerted practices between competitors (and not only agreements). Additionally, it provides further examples on conducts that can constitute a cartel.
Spanish administrative law establishes no penalties for attempted cartel conduct when it is unsuccessful. However, if a cartel agreement is reached, the relevant authority can impose penalties even if the agreement is not actually implemented or has no restrictive effect.
Under what circumstances can cartels be exempted from sanctions?
Sanctions for cartel infringements can only be avoided under Spanish law if the conduct is imposed by law. This exemption does not apply when the agreement is deemed to affect trade between member states and thus is subject to EU competition rules. No notification mechanisms and individual exemptions are foreseen in relation to cartel conducts under EU or Spanish law.
Can the company exchange information with its competitors?
The exchange of information between competitors is not in itself illegal. However, these exchanges of information may facilitate anticompetitive acts among undertakings by reducing the uncertainty of the future conduct of other competitors and they normally occur before price-fixing practices. Therefore, this requires a case-by-case analysis of the potential restrictive effects of information exchanges in regard to the benefits that they may generate.
The Spanish Competition Authority generally applies the criteria set out in the European Commission’s Guidelines on horizontal cooperation agreements. These guidelines state that the nature, quality and regularity of the data exchanged, the structure of the market and the form of access to the information should be taken into account. Consequently, some information exchanges, such as the exchange of aggregated and sufficiently historical information are unlikely to constitute an infringement. On the contrary, exchanges of disaggregated, present or future information regarding, for example, prices, costs, suppliers or other confidential information are likely to be considered restrictive. The Spanish Competition Authority has adopted a very strict stance in relation to information exchanges between competitors, and has even considered such exchanges to be a cartel. In 2015, 20 car manufacturers were fined for their involvement in a cartel consisting in the exchange of commercially sensitive and strategic information in the Spanish vehicle distribution and after-sales market. The information exchanged referred to past, current and future data on sales, quantities, remuneration and margins of the commercial networks as well as marketing strategies for the after-sales market.
Cartel leniency programmes
Is a leniency programme available to companies or individuals who participate in a cartel in your jurisdiction?
Leniency is available in Spain only in relation to cartel conducts. No other prohibited conducts can benefit from leniency.
Following the European model, the leniency programme offers full immunity and a fine reduction (partial leniency).
The benefits of the programme are available not only to undertakings but also to individuals (either because the original applicant is an individual or because the company requests that leniency be extended to its employees).
Full immunity is available to the first undertaking or individual that provides evidence that enables the competition authority to order an inspection or prove a cartel infringement but only if at the time of the leniency application the authority does not have sufficient evidence of the infringement. In addition, the leniency applicant must comply with the following requirements:
- full, continuous and diligent cooperation with the authority throughout the investigation;
- immediate cessation of its involvement in the infringement, unless the authority considers that its involvement is necessary for the effectiveness of its investigation;
- no evidence related to the application for the exemption has been destroyed;
- there has been no direct or indirect disclosure to third parties of the fact that an application for leniency is being considered or of any of its content; and
- no measures have been adopted to coerce other undertakings to participate in the infringement.
Partial leniency in the form of a fine reduction is also available to undertakings or individuals that provide evidence of the alleged infringement that adds significant value to evidence that the authority already possesses (ie, the new evidence makes it significantly easier for the authority to prove the infringement). These undertakings or individuals can benefit from reductions of up to 50 per cent of the fine.
The name of the leniency applicants is kept confidential until the statement of objections is issued. However, their name is disclosed in the final decision.
Can the company apply for leniency for itself and its individual officers and employees?
Yes, individual officers and employees can also benefit from a company’s leniency application if they are identified in the initial leniency application and they cooperate with the authority during the proceedings.
Can the company reserve a place in line before a formal leniency application is ready?
Spanish law does not have a ‘marker’ system as such. However, in practice, the competition authority may grant, upon an applicant’s justified request, more time to submit evidence on the cartel. Following the submission of the evidence within the agreed period, the filing date for the leniency application will be understood to be the date of the initial application.
If the company blows the whistle on other cartels, can it get any benefit?
If a company provides additional information on other cartels, it will get immunity in relation to those conducts.
Dealing with commercial partners (suppliers and customers)
What types of vertical arrangements between the company and its suppliers or customers are subject to competition enforcement?
The Competition Act defines vertical agreements similarly to EU competition law. Therefore, the same type of vertical restraints between undertakings and their suppliers or customers are subject to competition enforcement.
In this regard, vertical agreements in Spain are subject to an exemption under Spanish competition law parallel to the one established by Regulation 330/2010 of 20 April 2010 on the application of article 101(3) of the Treaty on the Functioning of the European Union (TFEU) to categories of vertical agreements and concerted practices. In addition, the Spanish Competition Authority uses the European Commission’s Guidelines on Vertical Restraints to assess vertical restraints that fall outside the block exemption.
Case law on vertical agreements has not been very prevalent recently if compared to that on horizontal agreements. Even so, the procedure initiated by the Spanish Competition Authority against Schweppes for prohibiting its distributors to sell in Spain Schweppes’ tonic water not produced by Schweppes’ Spanish subsidiary (case S/DC/0548/15, Schweppes) should be noted. The Spanish Competition Authority closed the investigation in view of the commitments offered by the company, according to which only the sale of Schweppes’ tonic water produced in the United Kingdom (which is made by Coca-Cola, not Schweppes) would be prohibited in Spain.
Would the regulatory authority consider the above vertical arrangements per se illegal? If not, how do they analyse and decide on these arrangements?
As explained in question 19, competition rules on vertical agreements apply in a similar way under both EU and Spanish competition law. In that vein, the Spanish Competition Authority has also adopted a less stringent approach towards vertical restraints, compared to horizontal agreements.
The Spanish Competition Authority, similarly to the European Commission, distinguishes between the practices that restrict competition law by object (eg, resale price maintenance or certain territorial and customer restrictions) and those that do so by effect (eg, recommended prices). In essence, the same categories that the European Commission considers restrict competition by object are deemed to do so by the Spanish Competition Authority (and conversely with regard to by-effect restrictions).
Under what circumstances can vertical arrangements be exempted from sanctions?
Vertical agreements under Spanish competition law are subject to an exemption parallel to that provided by Regulation 330/2010 of 20 April 2010 on the application of article 101(3) of TFEU to categories of vertical agreements and concerted practices (see question 19).
In addition, the Spanish Competition Act exempts practices that result from the application of a law. These practices are not exempted if they are the result of an act of a public authority or public company (eg, if a public authority orders an undertaking to act in a way that infringes competition law) or of a rule that is not a law (eg, a regulation).
Moreover, the Spanish Competition Act provides a de minimis exemption (similar to that established by the European Commission in its de minimis guidelines). In this regard, vertical agreements involving undertakings with an individual market share under 15 per cent are deemed automatically compatible with the Spanish Competition Act (if the conduct is carried out by competing undertakings, the exemption only applies if the combined market share is below 10 per cent). Note that certain especially serious practices (eg, resale price maintenance) are not automatically exempted. However, the Spanish Competition Authority is empowered to expressly exempt these practices if their impact is negligible in a given legal and economic context.
How to behave as a market dominant player
Determining dominant market position
Which factors does your jurisdiction apply to determine if the company holds a dominant market position?
In order to determine whether a company holds a dominant position, the Spanish Competition Authority generally follows the practice of the European Commission. It generally analyses whether the company has the ability to act independently in the market regardless of possible reactions from consumers or competitors.
In essence, the Spanish Competition Authority uses the following criteria for its analysis: market share of the undertaking concerned, market share of competitors in the relevant market, commercial and financial potential of such competitors, competitive advantages that the undertaking concerned may have (eg, technological, financial, commercial), barriers to entry to the market, or countervailing power of demand.
Abuse of dominance
If the company holds a dominant market position, what forms of behaviour constitute abuse of market dominance? Describe any recent cases.
The Spanish Competition Act provides an open list of examples that may amount to an abuse of dominant position, such as the following: directly or indirectly imposing prices or other commercial or service conditions, which are inequitable; limiting production, distribution or technical development in a way that is detrimental to companies or consumers; unjustifiably refusing to satisfy the demands to sell products or render services; applying, in commercial or service relationships, unequal terms for equivalent services that place some competitors at a disadvantage compared to others; and making the execution of contracts subject to the acceptance of supplementary services that, by their nature or according to commercial usage, have no connection with the purpose of such contracts.
However, this is not an exhaustive list and other conduct may be considered abusive if carried out by a dominant company, as long as it has the characteristics broadly described in the Spanish Competition Act (which essentially mirrors article 102 of TFEU).
In 2017, the Spanish Competition Authority issued four decisions in this field:
- - In case S/DC/0511/14, Renfe Operadora, a rail company (Renfe Group) was imposed a fine of €15.1 million for an abuse of dominance consisting in the application of dissimilar conditions to equivalent transactions, placing a competitor (Deutsche Bahn Group) at an advantage as regards other operators.
- - In case S/DC/0557/15, Nokia, this company was sanctioned for having abused its dominant position by engaging in margin squeeze practices in a tender called by the state-owned railway manager regarding maintenance services for the GSM-R telecommunications network. The fine imposed amounted to €1.7 million.
- - In case S/DC/0558/15, ACB, the Spanish National Basketball Association fined €400,000 for an abuse of dominance consisting in the application of disproportionate and discriminatory economic conditions to teams in order to be promoted to the top leagues, which actually impeded their promotion.
- - In case S/DC/0580/16, Criadores de Caballos 2, a €187,677 fine was imposed on the National Horse Breeders’ Association of Spain for having applied abusive conditions to companies that wished to organise competitions and contests.
It is also worth mentioning the recent judgment of the Spanish Supreme Court (5 February 2018, judgment 163/2018) whereby a decision of the Spanish Competition Authority was annulled. The Supreme Court declared that the authority had not sufficiently proven that the prices applied by the incumbent postal operator constituted an abuse in the form of a margin squeeze, since alternative operators had not been completely excluded from the market as a result thereof.
Under what circumstances can abusing market dominance be exempted from sanctions or excluded from enforcement?
According to the Spanish Competition Act, an abuse of market dominance can be exempted if it is the result of applying a law. As explained in question 21, the conduct will not be exempted if it is the result of an act by a public authority or public company or of a rule that is not a law.
In addition, the de minimis exemption established in the Spanish Competition Act also applies to abuses of dominant position. However, this exemption has limited effects in practice. Abuses of dominance are not automatically exempted, that is, they need to be expressly exempted by the Spanish Competition Authority. Such can be the case if their impact is negligible in a given legal and economic context, for example, if the duration of the conduct is limited or the market concerned is very small.
Finally, an abuse of dominance can be objectively justified, when a conduct is objectively necessary and proportionate. This is assessed under Spanish competition law in substantially the same way as under EU competition law.
Competition compliance in mergers and acquisitions
Competition authority approval
Does the company need to obtain approval from the competition authority for mergers and acquisitions? Is it mandatory or voluntary to obtain approval before completion?
Transactions falling outside the scope of the EU Merger Regulation and meeting any of the following thresholds are subject to mandatory notification in Spain:
- As a consequence of the transaction, the relevant undertakings acquire a market share of 30 per cent or higher in a national market or a substantial part thereof regarding a particular product or service. The market share threshold will not be deemed met if the target’s aggregate turnover in Spain is less than €10 million and the individual or combined market share of the parties to the transaction is below 50 per cent.
- Alternatively, the turnover of the relevant undertakings in Spain in the preceding financial year is at least €240 million, provided that at least two of the undertakings concerned had a minimum turnover of €60 million in Spain during that period.
As a rule, there is no formal deadline to file a notification. The only requirement is for the parties to notify the concentration (and have it approved) prior to its execution. However, in the case of Spanish takeover bids for shares admitted to trading on a stock market and authorised by the CNMV, the concentration must be notified within five days of submitting the application for the bid’s authorisation to the CNMV.
If sole control is acquired, the acquirer is solely responsible for the filing. If joint control is acquired, those who jointly control the entity after the transaction are jointly responsible for the filing.
How long does it normally take to obtain approval?
In most cases, the Spanish Competition Authority will adopt a decision in Phase I. Phase I decisions must be adopted within one month of filing, although this deadline may be extended by 10 working days if the parties submit commitments.
If the authority believes that the transaction may give rise to serious competition concerns, it will adopt a decision opening Phase II proceedings. In that case, a decision must be adopted within two months of the decision to start Phase II proceedings, although the deadline may be extended by 15 working days if the parties submit commitments.
The authority may send information requests during the review process if it considers that it needs further information for its analysis. These requests will stop the clock. In order to avoid any delays in the assessment and clearance of the transaction, it is strongly advisable to initiate pre-notification discussions with the authority before the formal filing.
If the company obtains approval, does it mean the authority has confirmed the terms in the documents will be considered compliant with competition law?
Ancillary restraints will be covered by a clearance decision provided that they are directly related to the transaction and necessary for its implementation. These concepts are interpreted in accordance with the European Commission’s guidelines on the matter.
The final decision will include an express declaration assessing whether the restrictions included in the transaction documents are ancillary to the transaction. If a provision included in the agreements is not deemed ancillary to the transaction, the decision will state that the parties should self-assess the compatibility of such provision with competition regulations.
Failure to file
What are the consequences for failure to file, delay in filing and incomplete filing? Have there been any recent cases?
Companies that implement a transaction that meets the relevant thresholds prior to receiving clearance can be fined up to 5 per cent of the turnover of the parties involved in the transaction in the year preceding the imposition of the fine. In addition, the authority will order the parties to file a notification within 20 days. If the company fails to do so, it can be fined of up to 1 per cent of the annual turnover of the undertakings concerned in addition to periodic penalties that can be imposed for each day of delay.
The competition authority actively investigates potential violations of the obligation to notify transactions that meet the relevant thresholds and has fined several companies for gun jumping. Fines are usually calculated as a percentage (between 0.5 and 3 per cent) of the target’s turnover in Spain. Recent fines imposed by the authority for gun jumping range between €40,000 and €200,000. It is also worth noting that in most cases, the obligation to notify resulted from meeting the market share threshold established under the Spanish Competition Act.
Investigation and settlement
Under which circumstances would the company and its officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?
Although it is not formally required to do so, it may be advisable for the company and its officers to have separate legal representation in cases in which its officers may be penalised. In 2016, 15 officers were sanctioned by the Spanish Competition Authority with fines. The fines imposed ranged between €4,000 and €36,000. The last decision in which an officer was sanctioned was adopted in case S/DC/0545/15, Hormigones de Asturias, where the officer of one of the undertakings involved in the anticompetitive conducts sanctioned was fined €12,000.
For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?
The Spanish Competition Authority has broad powers to carry out unannounced dawn raids at the companies’ premises to investigate any kind of conduct and it frequently exercises these powers in order to investigate all kinds of competition law infringements. The authority carried out eight dawn raids in 2016 and three as at April 2017.
During a dawn raid, officials are permitted to seize and make copies of all documents (whether physical or electronic) located at the company’s premises. However, private or legally privileged documents (attorney-client privilege only applies to correspondence between clients and external counsel but not to correspondence with in-house counsel) may not be seized. It is the duty of the company under inspection to identify personal and privileged documents during the inspection.
What are the company’s rights and obligations during a dawn raid?
In order to carry out a dawn raid, the competition authority must issue an investigation order. However, under Spanish law, access to premises must be consented to by either the occupants or a court through an order. Thus, in practice, the authority usually requests a court order in advance to make sure it can access the premises. Information contained in the investigation or court orders must include: the date of the inspection; the officials in charge of the inspection; the name of the undertaking and the address of the premises subject to inspection; and the object of the inspection. It is important to check that this information is correct before allowing the inspection to proceed.
Companies must cooperate during an inspection. Indeed, companies can be fined up to 1 per cent of their total turnover in the previous year if they fail to comply with this obligation.
Is there any mechanism to settle, or to make commitments to regulators, during an investigation?
Under Spanish law, the competition authority may accept the commitments offered by the parties if it believes that they will address the competition concerns identified, provided that the public interest is protected and the commitments offered can be easily monitored. No fines are imposed and no declaration of infringement is made in commitment decisions. Cartel cases and long-lasting infringements having produced irreversible effects or recurring infringements by companies cannot be closed with a commitment decision. The authority has wide discretion to accept or reject commitments.
What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?
The authority may take those amendments into account but how much weight it gives to them varies from one case to another.
Are corporate monitorships used in your jurisdiction?
Statements of facts
Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class actions or representative claims?
The facts included in a settlement decision are admissible as evidence in actions for private damages.
Invoking legal privilege
Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?
The Spanish Constitutional Court has established that companies and individuals can rely on legal privilege to deny the Spanish Competition Authority access to information. Three conditions need to be met for this purpose. First, the information must be confidential advice. In addition, the advice must have been provided by external legal counsel, namely, advice provided by in-house lawyers is not privileged. Third, the external counsel must be from an EU member state.
As regards relying on privilege against self-incrimination, article 24.2 of the Spanish Constitution provides the right not to testify against oneself. This right, however, may clash with the duty of undertakings to provide, at the request of the Spanish Competition Authority, all kinds of data and information that may be necessary to apply the Spanish Competition Act (established in the Spanish Competition Act and in Act 3/2013 of 4 June on the creation of the Spanish Competition Authority).
The Constitutional Court has stated that, in general, it is constitutional to request the cooperation of a party to impose penalties established by law (as the Spanish Competition Act and Act 3/2013 mentioned above do). By applying such general case law to Spanish competition law, the parties are obliged to provide the Spanish Competition Authority with the information it requests in accordance with the Spanish Competition Act, even if such evidence is self-incriminatory.
What confidentiality protection is afforded to the company or individual involved in competition investigations?
The Spanish Competition Act establishes that confidential data or documents can be ordered to be kept secret, ex officio or at the request of a party. A separate confidential file is created for these purposes, which can only be accessed by the party that has provided the information and the authority.
In addition, the Spanish Competition Act imposes a duty of secrecy on parties who take part in the handling or resolution of proceedings or become aware of the proceedings as a result of their profession (eg, lawyers, economists) or their involvement in them. They must keep secret all the confidential information that they have access to and breaching this duty has criminal, civil and administrative implications.
Note that the aforementioned Royal Decree-Law 9/2017 (see question 12) establishes a new and specific mechanism regarding access to sources of evidence, applicable only to procedures concerning claims for damages arising from antitrust infringements. This new mechanism enables a claimant to request the judge to order the counterparty or third parties to provide access to some sources of evidence necessary to substantiate the claim. The principles of proportionality, necessity and suitability must be preserved. Additionally, sanctions are foreseen if the evidence obtained by this means is inadequately used.
Refusal to cooperate
What are the penalties for refusing to cooperate with the authorities in an investigation?
Not supplying the information requested by the Spanish Competition Authority or supplying incomplete, incorrect, misleading or false information is a minor offence according to the Spanish Competition Act. As mentioned in question 36, undertakings are obligated to collaborate with the Spanish Competition Authority and must provide all the data and information required to apply the Spanish Competition Act.
In addition, obstructing a dawn raid (eg, by not submitting the documents requested or not answering the questions) carried out by the Spanish Competition Authority is a minor infringement according to the Spanish Competition Act.
Minor infringements are subject to fines of up to 1 per cent of the total turnover of the undertaking in the business year immediately preceding that in which the fine is imposed. If the turnover cannot be determined, this type of offence is fined between €100,000 and €500,000.
Is there a duty to notify the regulator of competition infringements?
No, there is no duty to notify the regulator of competition infringements. However, Spain has a leniency programme to promote the notification of infringements by undertakings (see question 15). Complaints can also be submitted.
What are the limitation periods for competition infringements?
The limitation periods depend on the nature of the infringement: four years for very serious infringements (eg, horizontal anticompetitive agreements); two years for serious infringements (eg, vertical anticompetitive agreements); and one year for minor infringements (eg, providing incomplete, incorrect, misleading or false information). The limitation period starts the day the infringement is committed or, in the case of sustained infringements, when it stops. In addition, limitation periods are interrupted by any act of the authority (of which the interested party must be notified) with the purpose of making the undertaking comply with the Spanish Competition Act.
With regard to penalties, the limitation period is four years, two years and one year depending on whether they are imposed for very serious, serious or minor infringements, respectively.
Are there any other regulated anticompetitive practices not mentioned above? Provide details.
The Spanish Competition Act prohibits, among others, all ‘consciously parallel practices’ that restrict competition. This conduct is substantially similar to the notion of ‘concerted practices’ established at EU level (also included in the Spanish Competition Act), but the Spanish Competition Authority has pointed out that they constitute two separate notions. Consciously parallel conducts have been defined as restrictions of competition through which each player, without any agreement, and acting unilaterally but harmoniously, adjusts its behaviour to that of the other players, avoiding competition.
In addition to consciously parallel practices, the Spanish Competition Act also prohibits acts of unfair competition (eg, the unjustified and systematic imitation of the actions carried out by another undertaking aimed at blocking or hindering its access to the market, or the exploitation of a situation of economic dependency of a customer or a provider) that affect the public interest by distorting competition. This prohibition encompasses practices that would not necessarily be prohibited by the provisions of the Spanish Competition Act that refer to anticompetitive agreements and abuse of dominance.
Are there any proposals for competition law reform in your jurisdiction? If yes, what effects will it have on the company’s compliance?
In 2017, the Spanish government put forward a draft law that would imply the separation of the Spanish Competition Authority to create a competition authority that is independent from the regulatory bodies (the current Spanish Competition Authority was created in 2013 after the competition authority integrated such regulatory bodies). It is uncertain if and when the separation will occur. In any event, the creation of an independent competition authority is not expected to affect company compliance in any way.
In addition, the Spanish Competition Authority has recently announced its intention to establish within the next few months a new economic intelligence unit aimed at fostering ex officio investigations based on statistical techniques. This might make the authority less dependent on leniency applications.