Antitrust Alert: Spain's National Competition and Markets Commission Focusing on Cartel Detection and Penalties in Numerous Sectors
Spain's National Competition and Markets Commission implemented a leniency program eight years ago. Now it is working at full speed. CNMC's leniency or "whistleblowing" program enables any participant in an anticompetitive conspiracy or "cartel" to obtain full immunity from fines in exchange for evidence against the cartel and full cooperation with authorities to detect and fine other members of the cartel. New government and private enforcement in Spain will increase the risk and penalties for competition law violations.
The CNMC is proud of its success and recently has announced that in 2015 this program enabled it to detect and fine 14 cartels in Spain, in a broad range of sectors including automotive, petrol distribution, milk producers, residues, modular construction and concrete manufacturers. During 2015 a total of 250 companies were fined with €506 million for their participation in cartels affecting Spain, well above the €53 million figure of 2014. However, the CNMC has declared there is still room for improvement and that during 2016 it plans to devote additional resources to detect and deter cartel activity.
The CNMC has identified the following main points of its action in the fight against cartels during 2016.
1. Detection of bid rigging. One of the areas of greatest concern is public contracts, where the CNMC has declared that it is aware that bid rigging is widespread and hard to detect. The CNMC will fight bid rigging through a specially created task force, as well as through the provision of appropriate training to contract awarding bodies and the creation of screening systems and data analysis that improve the ability of public administration to detect rigged bids.
2. Monitoring of specific sectors. The CNMC has announced that it will closely monitor certain sectors, markets such financial services, telecommunications, pay television, football rights, agriculture, and digital economy (that is, e-commerce, intermediary platforms).
3. Fines on companies' executives. Following a general trend in Spain towards increased liability for company executives for non-criminal offences, the CNMC has announced its intention to revitalize its authority to seek personal financial liability from executives who have participated in illegal agreements. A company applying for immunity may extend immunity to executives, but this is always subject to maintaining full cooperation with the CNMC during the whole investigation. The maximum amount of the fine that the CNMC can impose on an individual is €60,000.
4. Ban from public contracts. The CNMC will bolster a new deterrence mechanism recently included in the Public Sector Contracts Act (art. 60.1.b), which now imposes a ban from public contracting. This ban will take place automatically for any company found to have participated in a competition law violation. This has the potential to constitute a greater deterrent than a fine in itself in markets where the contracts are awarded by the public administration, such as public healthcare, defense, public works, etc.
Private litigation. One more important development is national legislation to allow companies or persons who believe they have been harmed by cartels to seek private redress from cartel participants. The Spanish law incorporates the EU directive on private actions for damages caused by infringement of the competition laws of the Member States and of the European Union. Disparities among the procedural laws across the EU Member States have discouraged private litigation. The national legislation passed in response to the EU directive will establish a harmonized framework on the right to compensation, disclosure of evidence, the effect of decisions of national competition authorities, limitations periods, the passing on defense, and joint and several liability of cartel participants. The EU directive requires this legislation be approved by the Spanish government before the end of 2016.
For more information, please contact your principal Jones Day representative or either of the lawyers listed below.
Marta Delgado Echevarría
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