GCR 100 - 17th Edition

Spain

10 January 2017

Spain

Despite a tough economic and political environment, the good times appear to be back for Spain’s competition bar, which routinely deals with a busy and dedicated national enforcer and heightened deal activity.

Elite

The National Authority for Markets and Competition (CNMC) prides itself on its constant grind through cartel cases both big and small. Cuatrecasas Gonçalves Pereira prides itself on having a hand in practically all of the big ones, ranging from international removals, cement, railway bearings, paper and cartonboard, to paper collection, pallets and refrigerated transport. Practice head Cani Fernandez is joined by partner Andrew Ward, and the firm has a rare asset in the form of antitrust damages specialist Paul Hitchings, a litigation specialist. Hitchings, who is based in Madrid, has litigated across several European jurisdictions, including for Deutsche Bahn in the UK carbon and graphite products follow-on case. Two Madrid associates dedicate themselves to competition litigation; the practice has six more competition associates in Madrid and a further three in Barcelona. Counsel Carolina Fernandez – formerly in-house at Telefónica and Coca-Cola – and Irene Moreno-Tapia, based in Madrid and Barcelona respectively, round out the team.

Fernandez and Moreno-Tapia scored a notable coup by filing leniency applications in the automotive manufacturing sector on behalf of Seat/Volkswagen; the company received full immunity for both investigations in which it was involved, and its actions kicked off probes that led to the imposition of more than €200 million in fines. Fernandez also acted for Productos Asfálticos in the ECJ appeal against its fine for its role in the bitumen cartel; Mediaset in CNMC proceeding linked to conditions imposed as part of 2010 merger clearance; and SKF during the CNMC’s bearings probe, which resulted in a €2.9 million fine.

There has also been a busy roster of merger control matters across several sectors – including hotels, telecoms, aviation and banking. Ward represented a third party during the Orange/Jazztel deal, and represented Prisa during the CNMC’s review of Telefónica/DTS. Moreno-Tapia meanwhile was involved in Just Eat/La Nevera Roja and Áreas/Eat out. Fernandez represented both Caixabank and Barclays as the former bought out the latter’s Spanish retail banking business for €800 million. The team is also advising companies affected by DG Comp’s Spanish shipbuilders state aid decision during a General Court appeal. Regular clients of the firm include Cepsa, Coc-Cola Iberian Partners, Mediaset, GALP and Banco Popular.

Freshfields Bruckhaus Deringer partners Francisco Cantos and Álvaro Iza between them boast a roster of large and complex cases that remains the one to beat in Spain. While it has the lowest senior headcount of any elite firm’s competition practice, it punches far above its weight and is an important part of Freshfields’ overall Spanish presence. The firm consistently has a role in the majority of Spain’s biggest cases. Rivals say Freshfields deservedly has an excellent reputation in merger control; but many overlook that it also has a market-leading behavioural practice.

Tough mergers make up a significant proportion of the firm’s Spanish competition law work. A recent highlight involved steering Mexican food company Grupo Bimbo’s acquisition of rival Pantico from Oaktree Capital Management. The CNMC conditionally cleared the deal. With Brussels partner Alan Ryan, Iza acted for BG Group during Shell/BG. Iza also represented cement company Holcim as DG Comp investigated its proposed sale of a 75% stake of its Spanish operations to rival Cemex, in the background of the global Holcim/Lafarge tie-up.

The firm is also a heavyweight in the behavioural sphere. Cantos secured full immunity for packaging manufacturer Linpac during DG Comp’s cartel investigation; it had been the only defendant involved in all five of the cartels targeted by the European enforcer. He also acted for MSC Terminal Valencia, a port services operator, in its successful bid to overturn fines the CNMC imposed on an alleged transport cartel; in 2016, the High Court annulled over €43 million in fines imposed on several companies. He was also involved in the CNMC’s car sales cartel investigation on behalf of General Motors. The car manufacturer was ordered to pay a €22.8 million fine – the single largest payment out of the €171 million total fine, which remains the CNMC’s largest ever. The team is representing LafargeHolcim during the CNMC’s cement, ready-mix concrete and related products probe, and took Mediapro’s article 101 and article 102 complaint to the CNMC over Telefónica’s and Distribuidora de Television Digital’s’ commercialisation of football rights in the 2012–2013 and 2013–2014 seasons. Telefónica paid a €10 million fine, and DTS – which later merged with Telefónica – was ordered to pay an additional €5 million.

Rivals are quick to praise the formidable skills of the competition practice at Garrigues, which over the past few years has frequently found itself in the driver’s seat of major EU competition law cases. The firm’s practice, led by Madrid-based Marcos Araujo, is widely seen as the best state aid practice in Spain. For example, it acts for a host of banks and other companies in challenging a DG Comp decision that attacked several Spanish tax rules; the General Court annulled the decision in December 2015. Ángel Givaja Sanz became a partner in 2015. Principal associate Alfonso Lamadrid in Brussels co-runs the popular Chillin’ Competition blog.

Araujo, Givaja and Brussels-based José Luis Buendía have represented watchmaker Rolex in the DG Comp investigation of several luxury watch manufacturers’ refusal to supply spare parts to independent repair shops. The same trio and Lamadrid represented Repsol during its appeal against the EU bitumen cartel decision. DG Comp itself tapped partner Luis Ortiz Blanco – a former official at the enforcer – and Lamadrid to resist appeals against its pre-stressing steel cartel decision, dealing with complicated issues of parental liability and the concept of a single and continuous infringement; the General Court threw out the appeal entirely in June 2016. The pair also acted for Cisco as it appealed against DG Comp’s Microsoft/Skype clearance; the General Court rejected the appeal in late 2013. Garrigues continues to advise the company on competition matters. The firm is also involved in several interesting but confidential matters in the high-tech sphere.

Unsurprisingly, Garrigues is a major force in national matters too. Araujo counselled Mapfre in the Supreme Court building insurance appeal. The firm represented three companies in the CNMC’s car sales investigation: Madrid of counsel Konstantin Jörgens acted for BMW, and Blanco and Araujo advised Peugeot Citroën and KIA, respectively. Araujo represented travel agency Viajes Halcón in the CNMC’s investigation of the company’s potentially anticompetitive joint venture with Viajes Barceló.

EU and antitrust work takes up around 90% of Martínez Lage Allendesalazar & Brokelmann’s time, says partner Rafael Allendesalazar, of which roughly 80% is behavioural. The boutique was formerly a branch of antitrust heavyweight Howrey from 2008 until its dissolution in 2011 – a testament to the firm’s top reputation in competition matters in Spain and the EU more generally. Working with Allendesalazar are partners Helmut Brokelmann and managing partner Santiago Martínez Lage, who founded the firm in 1985; observers say he has become less visible in recent years – but Allendesalazar and Brokelmann are widely reckoned to be some of the best practitioners on the Spanish market. Telecoms appears to be a particular strength.

The firm represented Riberebro during DG Comp’s mushroom cartel investigation; two years after the enforcer imposed more than €32 million in fines on rivals Bonduelle and Prochamp, it ordered Riberebro – which had refused to settle – to pay €5.2 million for price-fixing and market allocation across Europe between 2010 and 2012. Allendesalazar and Alfonso Rincón represented Urban Science during the CNMC’s blockbuster car sales cartel; the company was ordered to pay a €70,000 fine for its role in facilitating the infringement. Brokelmann acted for DTS, which the CNMC ordered to pay €5 million Spanish fine alongside owner Telefónica over a concerted practice linked to televised football rights.

Despite the firm’s behavioural focus, it still finds itself involved in some meaty mergers. It represented frequent client Orange during its acquisition of web and cable provider Jazztel, acting together with a team at Willkie Farr & Gallagher. DG Comp cleared the four-to-three deal subject to the divestment of a Jazztel-operated fibre-optic network after an in-depth review, two weeks before its legal deadline, despite concerns the deal would boost prices for internet access for Spanish consumers. In a separate Orange merger-related case, Allendesalazar has represented it during its appeal against the CNMC’s decision to allow Telefónica to acquire Canal+.

Uría Menéndez has the largest competition practice in Spain, headed by veteran Jaime Folguera in Madrid. He is joined there by partners Patricia Vidal and Alfonso Gutiérrez, as well as Antonio Guerra – a rare successful mover from enforcement to private practice, after he joined the firm from Spain’s Competition Tribunal in 2013. Vidal, previously a counsel, became a partner in 2015. In Barcelona, partner Juan Antonio Pérez Rivarés and counsel Victor Ferreres Comella also assist on competition matters, and the team is rounded by Edurne Navarro Varona, who is based in Brussels. The team, as one might expect, gets through an impressive amount of top-level work. They identify EU merger control as a particular growth area, and regularly pairs competition specialists with the firm’s formidable commercial litigation department to create a top-notch follow-on damages practice.

Gutierrez was co-counsel to Coca-Cola Iberian Partners during the merger of Coca-Cola’s bottling businesses to form Coca-Cola European Partners, which serves 13 companies across Western Europe. DG Comp cleared the deal in late 2015. Following the CNMC’s unconditional Phase II clearance of JCDecaux’s acquisition of Cemusa in 2014, Folguera and Vidal represent the buyer during an appeal against that decision. The firm has also advised supermarket DIA on competition aspects of an alliance with French retailer Casino, which required EU advice and coordination of merger filings in Latin America, including in Brazil and Argentina.

The CNMC’s appetite for pursuing cartels has generated heaps of work for the Uría Menéndez team, both in the investigative and appeals spheres. In a recent highlight, Vidal acted for Munich Re in an unusual Supreme Court case linked to Spanish building insurance cartel proceedings – which prompted DG Comp’s first-ever ex officio intervention in a Spanish appeal. Also in the Supreme Court, Folguera obtained dismissal of a €48.2 million fine imposed on Acciona/Trasmediterránea, in a case that clarified that the CNMC is barred from embarking on fishing expeditions. The firm has otherwise been involved in a slew of investigations – including for Cemex in DG Comp’s aborted cement cartel investigation and an appeal against the agency’s information requests; Roca in an ECJ appeal against a DG Comp decision; and on the national level, in the CNMC’s investigations of information technology, petrol stations, auto manufacturing, milk and reactive strips. Guerra represented Viajes Barceló in the CNMC’s investigation of its joint venture with Viajes Halcón.

Clifford Chance handles complex deals worldwide, and the Spanish team, headed by Madrid partner Miguel Odriozola, is no exception. It represented Telefónica during its controversial acquisition of pay-TV operator DTS, bagging CNMC conditional clearance – and saw that Phase II approval challenged in Spain’s High Court, where proceedings are ongoing. Clifford Chance also handled the sale of outdoor advertising subsidiary Cemusa to JCDecaux. Again, the CNMC cleared that deal – this time unconditionally – but an appeal against that clearance is pending.

No matter how impressive its work on merger control is, though, there’s more to the firm’s Madrid team. It has handled appeals against CNMC decisions by Avis, leading to the annulment of a €1.5 million fine, and Probisa, following which a court reduced a bid-rigging penalty by €954,000 to €911,000.

CMS Albiñana & Suárez de Lezo was a new entrant to our survey in 2013 – the same year that current practice head Patricia Liñán became a partner – and has had a busy time since. Liñán is assisted by a senior associate and an associate, and another associate is set to join in the next few months. Former leader Diego Crespo left the practice in June 2016. For a team that’s relatively small by the standards of Spain’s competition bar, it picks up substantial work. Rivals say Liñán and her team have become especially prominent in private damages, and appeals and private litigation remain a clear strength, but it has expertise across the board.

The firm acts for Lactalis in an appeal against the €11.6 million fine imposed by the CNMC’s dairy cartel decision. It also represented Sulzer in an appeal against the same agency’s fluid pumps cartel decision, leading to the Spanish Supreme Court chopping the company’s €1 million fine in half in October 2015. In a further interesting appeal, Liñán acts for Adveo in judicial proceedings tied to the envelopes, notebooks and filing products cartels. CMS’s client was a successful immunity applicant in all three – but was fined in a fourth matter linked to envelopes exports. The company got that fine overturned, and is set to argue before the Supreme Court. Elsewhere, the firm is involved in several private damages matters that are confidential. Before his departure, former team head Crespo represented Acciona in DG Comp review of is acquisition of Nordex, with a German Freshfields team on the other side of the table. CMS also coordinated filings in Turkey, South Africa, Pakistan and the US, working closely with its German colleagues.

DLA Piper used to be a family affair, with Juan Jiménez-Laiglesia and his brother Jose María overseeing the practice. Juan and of counsel Alfonso Ois left to join EY in 2016 – but Jose María insists this has not had a major effect on the DLA practice. Indeed, the team, albeit smaller than it used to be, remains engaged in some particularly interesting matters – telecoms is a stand-out area for the practice – and Jose María and his team are well regarded by rivals. As a testament to its reputation, DLA continues to be instructed by top-notch clients such as Repsol and France Telecom.

Vodafone is another regular client that requires big-ticket work. The team handled its acquisition of cable operator Cableuropa for €7.2 billion – the largest-ever Spanish telecoms deal – alongside colleagues in London. DG Comp ultimately unconditionally cleared the deal in Phase I. DLA also took care of Vodafone’s merger with DTS, bagging CNMC Phase II conditional clearance. The team acts on interesting behavioural work for the telecommunications company, too, including filing complaints against Telefónica and Yoigo that led to CNMC restrictive practices fines, and Telefónica and DTS over football rights practices, which led to separate fines totalling €15.5 million. The team represented Renault during the CNMC retail vehicle sale investigation; following an infringement decision, the matter is subject to an appeal. It also acted for the TCV Stevedoring Company following a Spanish investigation of an alleged cartel affecting the port of Valencia. DLA was hired to bring an appeal against the decision, and succeeded in getting the decision struck out.

Madrid’s football fans should keep an eye on Linklaters, as it represented Real Madrid in a pair of state aid investigations linked to real estate deals with Madrid’s city council, and the different Spanish tax regimes for football clubs. It’s a testament to the firm’s strength in many areas of law that it has been able to field expertise in competition, real estate, planning, tax and general corporate law in working for the football club. In another prominent case, Linklaters Spanish competition head Jaime Perez Bustamante and counsel Fredrik Löwhagen acted for B&M Automóviles in the CNMC’s car sales investigation; the company ultimately received a €776,000 fine.

Linklaters has also been in court on behalf of Correos, Spain’s postal incumbent, as it challenges a 2014 €8.2 million margin squeeze fine. Spain’s High Court concluded that the CNMC had failed to show any foreclosure effects following Correos’ conduct, and struck the decision down – one of few instances of a European margin squeeze decision being overturned. The CNMC has appealed against that ruling to the Supreme Court. Linklaters was in charge of a Spanish notification for Johnson & Johnson’s US$1.99 billion sale of vascular medicine developer and manufacturer Cordis to Cardinal Health.

Oriol Armengol oversees the competition practice at Pérez-Llorca, which he estimates spends around 40% of its time on behavioural work, the same on mergers, and 20% on compliance and advisory matters. Armengol’s team frequently handle both Spanish and European matters; Spain’s government often turns to the firm to handle cases in the European courts in Luxembourg. Pérez-Llorca was involved in EU competition commissioner Margrethe Vestager’s first-ever cartel decision in late 2014, bagging client Tompla a 50% cut to a fine that it had been ordered to pay for its involvement in the envelope makers cartel. Armengol also represented Compañía Española de Petróleos (CEPSA) during its appeal against DG Comp’s bitumen cartel decision, but the European Court of Justice dismissed the appeal in 2016.

Back in Spain, meanwhile, the team is acting for German rail company Deutsche Bahn and Spanish subsidiaries in a CNMC investigation of alleged collusion with Spanish incumbent rail operator Renfe. Nexans Iberia also turned to the firm as it faced a CNMC investigation in the market for the production and distribution of low- and mid-voltage electrical cases. As GCR went to press, the case had yet to reach the statement of objections stage, but Pérez-Llorca’s client is no longer part of the investigation. On the mergers side, the firm advises the Sociedad General de Aguas de Barcelona on the merger control aspects of all its deals. It also advised online classified marketplaces company Schibsted Classified Media on its acquisition of Milanuncios; CNMC clearance of that deal is currently subject to a judicial challenge.

Allen & Overy’s Madrid team is defending Google in DG Comp’s investigation of the Android smartphone operating system. Practice leader Antonio Martínez works alongside colleagues in other jurisdictions – and Cleary Gottlieb Steen & Hamilton – assisted by senior associate Jaime Rodríguez, the second-most senior lawyer in the team. Advising Telefónica in its General Court appeal against a DG Comp €66.8 million fine over an allegedly restrictive non-compete agreement with Portugal Telecom, with lawyers from Uría Menéndez and CMS also on board, has been another high-profile mandate. The General Court upheld the decision, but ordered DG Comp to recalculate the fine it imposed on Telefónica. Collecting entities AGEDI and AIE turned to Allen & Overy for defence against the only abuse of dominance case the CNMC concluded in 2015, and a parallel case that has seen the CNMC pursue a commercial broadcasters’ association over a collective boycott recommendation. The firm represents Hanson, a HeidelbergCement subsidiary, in two CNMC cement cartel investigations.

Ashurst’s advice to Hewlett-Packard has been a highlight recently. The technology company is currently appealing against the CNMC’s decision to reject its abuse of dominance complaint against Oracle – after Freshfields filed the original complaint. The appeal marked the first time a Spanish court has fully reviewed an abuse of dominance case, and exceptionally found Oracle liable and said it should continue developing new versions of certain databases. The team has several similarly interesting high-tech confidential matters on its docket, all overseen by competition team leader Rafael Baena. In merger control, following Ashurst’s profile firmwide, there’s plenty of private equity work to keep the team ticking over. The firm’s recent Spanish cartel matters have seen it working for the likes of Roche Diagnostics and Hyundai.

The four-partner, three-associate team at Baker & McKenzie is especially successful in appeals. Partner Carles Prat represents Honda before Spain’s Constitutional Court against the CNMC, arguing that evidence gathered during a dawn raid went beyond the scope of the enforcer’s search warrant. With Barcelona partner Valeria Enrich, Prat also acts for the car company in its appeal against the 2015 automobile cartel. Partner Alberto Escudero and commercial litigation of counsel José María Ayala represented insurer Asefa in the Supreme Court building insurance appeal. Escudero also guided Tubos y Hierros in a successful appeal against a Spanish cartel decision, which saw a court annul the company’s €2.1 million fine. The practice has also represented the likes of Fox, Abbott Laboratories and ATOS in infringement proceedings. In mergers, the practice acted for the Bright Food Group in European proceedings as it merged with Miquel Alimentació, and Smartbox as it bought rival Dakota, which ended in Phase I clearance despite the companies’ combined high market share. Alongside Baker & McKenzie’s Mexico office, the team represented BBVA in a Mexican deal that saw the company sell its shares in Occidental Hoteles Management to Barceló Corporación Empresarial.

The Gómez-Acebo & Pombo senior competition team is split among three cities. Practice head Iñigo Igartua is based in Barcelona; partner Miguel Troncoso Ferrer works from Brussels; and counsel Eduardo Gómez de la Cruz and Ricardo Alonso Soto reside in Madrid. Igartua leads Smurfit Kappa’s appeal against the CNMC’s paper and corrugated cardboard cartel decision, which led to the company’s receiving an €8 million fine after the agency agreed to exclude the company from several aspects of its investigation. He also represented Continental Automotive Spain in a Spanish investigation of alleged vertical restraints; the CNMC closed its investigation. The team, again led by Igartua, has defended Betón Catalán and Cementos Lemona in the CNMC’s cement cartel probe. The firm also has a hand in several confidential Spanish damages claims.

Hogan Lovells prides itself for its expertise in the automotive and insurance spheres – the firm represented Scor in the Supreme Court building insurance appeal, and acts for both Ford’s Spanish operation and Fiat Chrysler in an appeal against the CNMC’s auto manufacturers decision. Casto González-Páramo heads the practice, and is assisted by a pair of associates. Outside the insurance and auto sectors, González-Páramo and his team have counselled Schweppes during a CNMC investigation targeting its agreements with beverage distributors, and Caixabank as the Spanish enforcer pursues it and other banks for an alleged infringement related to an agreement to coordinate the conditions offered in syndicated loans.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Elite

Cuatrecasas Gonçalves Pereira

Cani Fernández

3 partners

2 counsel

11 associates

Cani Fernández

Andrew Ward

SEAT/Volkswagen, Coca-Cola Iberian Partners, Cepsa, Mediaset, GALP, Banco Popular, ACEK, Saica

Freshfields Bruckhaus Deringer

Francisco Cantos

2 partners

2 senior associates

8 associates

Francisco Cantos

Álvaro Iza

Aena, Amedeus, Ferrovial, Repsol, Agbar, Cepsa, Airbus, BG Group, British Telecom, Deutsche Bank, ThyssenKrupp

Garrigues

Marcos Araujo Boyd

5 partners

1 of counsel

1 principal associate

9 associates

Marcos Araujo Boyd

Konstantin J Jörgens

Santander, Bank of Spain, Cisco, eBay, DG Comp, Lego, Rolex, Vueling, Orona, Google

Martínez Lage Allendesalazar & Brokelmann

Santiago Martínez Lage

3 partners

3 senior associates

Rafael Allendesalazar

Helmut Brokelmann

Santiago Martínez Lage

Riberebro, Urban Science, DTS, Orange

Uría Menéndez

Jaime Folguera

6 partners

2 counsel

1 consultant

13 associates

Jaime Folguera

Antonio Guerra

Alfonso Gutiérrez

Patricia Vidal

Coca-Cola Iberian Partners, Johnson & Johnson, Pfizer, Cemex, Caixabank, JCDecaux, Diebold, Jazztel, Hasbro, Bayer

Highly recommended

Clifford Chance

Miguel Odriozola

2 partners

4 senior associates

3 associates

Miguel Odriozola

Telefónica, Cemusa, Avbis, Probisa

CMS Albiñana & Suárez de Lezo

Patricia Liñán

1 partner

1 senior associate

1 associate

None

Heineken, Berge, Campofrio, Medtronic, Adveo, Sulzer

DLA Piper

Jose María Jiménez-Laiglesia

1 partner

1 legal director

4 associates

José María Jiménez-Laiglesia

France Telecom, Arcelor, Repsol, Vodafone, Ono, KKR, CVC Capital Partners, Oaktree Capital Management

Linklaters

Jaime Pérez-Bustamante

1 partner

1 consultant

1 counsel

1 managing associate

9 associates

Jaime Pérez-Bustamante

BP, Grupo ACS, Banco Santander, Cargill, Correos, Nestlé, Visa Europe, LG, Hertz

Pérez-Llorca

Oriol Armengol i Gasull

1 partner

1 senior associate

3 associates

Oriol Armengol i Gasull

Cepsa, Deutsche Bahn, Sociedad General de Aguas de Barcelona, Schibsted Classified Media, Tompla

Recommended

Allen & Overy

Antonio Martínez

1 partner

1 senior associate

5 associates

Antonio Martínez

Evonik, Fox, Amazon, Berkshire Hathaway, Novartis, Telefónica, Boehringer Ingelheim España

Ashurst

Rafael Baena

1 partner

2 associates

None

Hewlett-Packard Inc, Hewlett-Packard Enterprise Services, Hyundai, CEPSA, Roche Diagnostics, Iridium, Italfarmaco, NH Hoteles, Grupo Planeta

Baker & McKenzie

Alberto Escudero

4 partners

3 associates

None

Asefa, Atos, BAT, BBVA, Eli Lilly, Honda Motor Europe, Universal, Viscofan, Votorantim. Schreiber

Gómez-Acebo & Pombo

Iñigo Igartua Arregui

2 partners

2 counsel

5 associates

Iñigo Igartua Arregui

Panasonic, Schindler, Nike, Henkel, Fresenius, BASF, Continental Automotive, Domino's Pizza

Hogan Lovells

Casto González-Páramo

1 partner

2 associates

None

Fiat Chrysler, Schweppes, Ford, Caixabank, BBVA, Antalis, Alstom

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