Spain’s National Markets and Competition Commission (Comisión Nacional de los Mercados y la Competencia, or “CNMC”) has opened a public consultation process for economic operators to submit feedback to its draft guide on competition law compliance programmes (the “Guide”). The CNMC’s main aim in publishing the Guide has been to clarify the basic criteria that it considers are vital for a compliance programme to be effective.

As well as the ex-ante implementation of compliance programmes by companies aimed at avoiding competition infringements, the CNMC’s Guide also expressly provides the possibility of economic operators establishing new compliance programmes or improving existing programmes once an investigation has been launched into competition infringements, known as ex-post compliance programmes. These compliance programmes might not only be taken into account as a factor in reducing potential sanctions, they also amount to a self-cleaning measure by which to elude an exclusion from public procurement processes as a result of competition violations.

The CNMC’s recent Resolutions show that procurement bans are measures imposed automatically on all companies that participate in a cartel (except for those that apply for leniency). On that basis, the CNMC indicates in the Guide that, in accordance with article 72.5 of the Spanish Public Procurement Law 9/2017, of 8 November (Ley 9/2017 de Contratos del Sector Público, or “LCSP”), an economic operator under investigation may avoid a ban or have it lifted when, as well as undertaking to pay the fines established in the CNMC’s Resolution, it implements an effective compliance programme, or makes improvements to a programme pre-existing the investigation. For the CNMC to take the measures into account, companies under investigation must provide an explanation to the CNMC as to the compliance programme’s design or how it has been improved and send, within six months, a statement made by their legal representatives certifying that it has been implemented.

The CNMC therefore confirms in its Guide that self-cleaning measures – such as compliance programmes – adopted before a procurement ban is imposed may be submitted to the CNMC by investigated companies during the course of disciplinary proceedings that the CNMC has opened for competition infringements so as to avoid the CNMC ultimately imposing the ban1 (see last e-bulletin).

However, the Guide remains silent on the process of assessing compliance programmes that have been adopted after companies have been sanctioned and have already been excluded from taking part in procurement processes2. The future approval of the Guide is a sign of the CNMC’s commitment towards prevention and rehabilitation, by adopting effective compliance programmes, whether ex-ante – before an investigation is launched, where internal controls are adopted that allow companies to detect anti-competitive behaviour internally – or ex-post – programmes aimed at anti-competitive conduct from re-occurring in the future. In any event, to be truly effective, these programmes must guarantee, through a structured set of instruments, mechanisms and actions, the existence of a genuine commitment to comply with competition provisions that encompasses the day-to-day decision-making process affecting all of the workers in a company. The criteria that the CNMC understands are vital for a compliance programme to be effective are as follows:

  • Involvement of the economic operator’s management bodies and/or its senior executives. The culture of compliance must be promoted and fostered by the people who are authorised to make decisions on behalf of the operator or who hold organisational or controlling powers within it. Furthermore, the culture of compliance must be an intrinsic part of the company’s management policies, promoting a policy of incentives that fosters the programme’s fulfilment.
  • Training underpins the compliance programme. The CNMC highlights training on the compliance programmes, which must be adapted to the activities, role and responsibilities of each of the company’s workers and must be accessible, adaptable and measurable. It is also essential for the CNMC that ad hoc training be provided whenever circumstances change within the company or in the market (for example, changes to shareholding structure, the engagement of a new service provider or entry into a new market, the emergence of new jurisprudence, etc.). The CNMC stresses that a training strategy will not be considered effective if it is merely a standard strategy that only offers an overview of basic notions of competition compliance.
  • Anonymous whistleblowing channels, which allows for offending conduct to be detected swiftly and whereby every worker in the company, after having received the proper training, will be able to detect a competition infringement and make it known to the person responsible for the whistleblowing channel without fear of recognition or punishment.
  • Independence of the person responsible for designing and supervising compliance policies. The company must appoint a compliance officer who is directly responsible for the design and the implementation of the compliance programme and who must have the fullest of powers and resources to perform the role independently.
  • Identification of risks and design of supervisory and control protocols or mechanisms. An analysis must be conducted within each company and each of its business units of the risks to which they are exposed. To do so, a risks matrix should be devised indicating each one of the business areas within the organisation that are most at risk of exposure to competition violations, as well as the likelihood and impact that an offence would have on the company and its workers (those variables will be different depending on the sector in which a company operates and its specific characteristics).

    Finally, as with training, the CNMC insists that the system in place for identifying risks must be updated constantly and must be modified whenever an event occurs that entails new risks for the operator (performance of new business, corporate acquisitions, etc.), in which case the risks matrix and the protocols must be amended accordingly.

Therefore, merely implementing a standard compliance programme, whether that be ex-ante or ex-post, does not suffice in the CNMC’s eyes and does not in itself mitigate a company’s liability for an infringement of competition provisions. The CNMC will assess compliance programmes on a case-by-case basis taking into account the above considerations when making a decision on the potential modulation of sanctions in the context of disciplinary proceedings, or the possibility of not applying a public procurement ban pursuant to article 71 LCSP.

The CNMC’s Guide is currently in a draft stage, subject to a public consultation process. The deadline for submitting observations to the CNMC regarding the Guide is 29 February 2020.