The European Antitrust Review 2014 • Section 3: Country chapters
The Spanish National Competition Authority (NCC) continues to focus on the improvement of merger control assessment with a view to ensuring the existence of effective competition in the market. The NCC is committed to increasing its control over the transactions taking place in the Spanish territory to ensure that the economic operators comply with their obligation to notify, as well as that the conditions imposed on some of them are effectively honoured by the parties.
The most significant development expected for 2013 is the recent creation of the National Markets and Competition Commission (NMCC), as a result of which the NCC merges with the main regulatory and supervisory bodies in Spain. The NMCC will act as a unified market supervisor integrating a strong competition authority with regulatory bodies, better suited to developing market supervision functions that benefit from the existing synergies across regulators in terms of resources (personnel and assets) and expertise. This approach, based on a single authority, is different from the one adopted by other main European countries and so its appropriateness is still to be tested.
Although key details on implementation are pending, the new entity intends to ensure a proper functioning of the market based on transparency and the existence of effective competition in all markets and sectors, to the benefit of consumers.
Disa/Shell (Case 468/12)
In March 2013, the NCC has issued a second-phase clearance decision authorising the acquisition of joint control by DISA over Shell Aviation Spain, subject to the fulfilment of several conditions.
The first commitment enables third-party access to DISA’s infrastructures to supply aviation fuel in the airports located in the Canary Islands on objective, transparent and non-discriminatory terms. In this regard, DISA accepted to publish information online relating to the terms on which access to its infrastructure would be granted (eg, tariffs, means of access, investment plan, spare capacity, etc).
A second commitment is referred to the transport of fuel in the Canary Islands. DISA commits to publish the required information to hire these transport services (tariffs, means of access, investment plan, spare capacity, etc).
Finally, DISA and Shell agree to exclude from the scope of the joint venture their respective services of aircraft fuelling services at airports. This condition aims to eliminate the structural links between these competitors in the aviation fuel supply market.
Antena 3/La Sexta (Case C/432/12)
In July 2012, the NCC cleared the merger between Antena 3 and La Sexta in a second-phase decision imposing certain conditions on the parties aimed at safeguarding effective competition in the affected markets. This transaction had an EU dimension according to the EU merger control rules, but was referred to the NCC because the impact of the merger would be limited to Spain and would therefore be better examined by the NCC.1
The effects of this merger were mainly focused on the television advertising market, where the number of players was reduced from three to two. Moreover, according to the NCC, La Sexta was an aggressive competitor which pushed prices down and acted as an important focal point for the grouping of advertising offers for the smaller television channels. Additionally, Antena 3 had a strong market presence and by increasing its audience it would increase its pivotal role for many major advertisers who might not avoid advertising on Antena 3 without suffering irreparable harm to the coverage of its advertising campaigns, especially since public TV corporation RTVE had exited the television advertising market. Finally, the NCC identified a risk arising from the resulting duopoly covering over 85 per cent of the television advertising market in value. This, according to the NCC, significantly enhanced the ability and incentives of Antena 3/La Sexta and Mediaset to tacitly coordinate their behaviours. The NCC did not accept the arguments advanced by Antena 3 that La Sexta would be forced to close if the merger did not go ahead or the claimed efficiencies which, according to the NCC, were not adequately quantified and would not be passed on to consumers.
The merger was cleared subject to the fulfilment of certain conditions and was one of the rare cases which include a decision from the Spanish Council of Ministers amending some of the conditions previously imposed by the Council of the NCC. These were mainly aimed at preventing Antena 3 from implementing commercial policies that unduly restrict advertisers and media agencies contractual freedom or exclude third-party operators from free-to-air television (eg, reaching agreements for managing third-party advertising spaces). Other commitments intended to limit the reinforcement of Antena 3’s position on the free-to-air television market and to allow audio-visual content acquired by Antena 3 to be periodically released on the market. Finally, Antena 3 committed to regularly report to the NCC and to maintain these conditions for three years.
2012 was a key year in the bank restructuring process in Spain and numerous mergers between financial entities have taken place. Some of these transactions involved the acquisition of sole control over other entities, such as the purchase of CAM by Banco Sabadell, Banca Civica by CaixaBank and Banco Pastos by Banco Popular, all of which were authorised by the NCC in first-phase decisions without commitments. The acquisition of Banco de Valencia by Caixabank is perhaps the most interesting of all in terms of the competition assessment, as the acquirer committed not to have representatives on the Boards of Agbar and Aguas de Valencia simultaneously, since these two companies were competitors in the same markets.
Sanitary ware and plumbing materials
In May 2013, the NCC imposed fines to a value of more than €6.4 million on 22 distributors of sanitary ware and plumbing materials. The NCC concluded that the aforementioned companies were liable for entering into agreements on issues that affected the end price paid by customers for plumbing and sanitary ware materials. The proceedings were initiated as a result of a complaint filed by the Association of Plumbing Installation and Heating, Gas and Other Fluid Installation Businesses of the Autonomous Community of Valencia.
The Council of the NCC concluded that this cartel remained operative until 2011 by strengthening their bargaining power against their customers, increasing, re-establishing or maintaining their profit margin in a way that resulted contrary to the normal competition conditions of the market.
Paper envelope export
In April 2013, the NCC imposed fines on 15 companies for a price-fixing and market-sharing agreement concerning exports of paper envelopes. The infringement lasted more than 30 years and fines totalled over €3.7 million.
Hispapel, SA, a company created by the envelope manufacturers, was the forum in which the infringers met, exchanged sensitive information and reached anti-competitive agreements.
In application of the leniency programme, Adveo Group and its subsidiary Unipapel Transformación Y Distribución, were excused from paying the imposed fine because they provided information with significant added value. On the other hand, two companies received a 40 per cent reduction in its fine for cooperating with the NCC.
Polyurethane foam manufacturers
In March 2013, the NCC imposed fines totalling more than €26 million on 10 companies and the sector association for being parties to a cartel on the market for the manufacture of flexible polyurethane foam for the comfort industry, which consisted on price-fixing and market-sharing agreements.
These proceedings were initiated by means of a leniency programme application issued by Recticel, SA looking to obtain an exemption from the payment of the fine that could be imposed by the NCC.
In this regard, the NCC stated that the companies agreed prices and shared out production by reference to quotas that the operators could not exceed. In view of the increase in sales of Portuguese competitors, the members of the cartel focused their collusion on agreements regarding price increases.
In February 2013, the NCC imposed over €9 million in fines to three companies for taking part in a cartel in the paper handling sector.
The NCC considered that the companies reached an agreement to share the Spanish market between 1995 and 2010, fixing minimum prices for commodities and respecting their key clients. As a result of the leniency programme, Unipapel avoided the fine and Tompla received a 35 per cent reduction for providing valuable information.
Container road transport in the Port of Barcelona
In January 2013, the NCC imposed fines totalling more than €20 milion on the associations ALTC and Cotraport, and on the Port Authority of Barcelona for participating in a cartel affecting the road transport of containers to and from the port of Barcelona.
ALTC and Transcont jointly developed the applicable prices, payment terms and discounts applicable to containers transported by road to or from the port of Barcelona. Lorries were counted (increasing any fleet required prior authorisation from the associations), individually authorised to enter the port and monitored to confirm that the agreed conditions were being consistently applied. To further eliminate competition between carriers, a price list was drafted and sent to final customers intermediaries, such as freight forwarders, consignees or customs agents in an attempt to promote those rates as standard port rates.
Barcelona’s Port Authority was also found liable for this infringement since it participated in the organisation and operation of the cost observatory described above and prepared the relevant documents to calculate transport costs.
Maritime transport of passengers and cargo between the Iberian Peninsula and Morocco
In November 2012, the NCC fined six shipping companies for participating in a cartel affecting maritime transport of passengers and cargo between the Spanish Peninsula and Morocco. Total fines were over €88.5 million.
The evidence to initiate this investigation was obtained in a dawn raid conducted by the NCC at the headquarters of the shipping companies. Subsequent inspections provided additional evidence of meetings, information exchanges, agreements on prices, commissions, trading conditions and schedules of the different routes. The cartel operated between 2002 and 2010.
When imposing the fines, the NCC took into account the seriousness of the infringement, its duration, the scope of the illegal practice and the serious impact on public interest, given that the cartel affected the connection between the Peninsula and Northern Africa. Additionally, several companies received a 5 per cent increase in their fines for recidivism. Balearia received a 40 per cent reduction under the leniency programme.
Antitrust: restrictive agreements and dominance
Sociedad Estatal de Correos y Telegrafos, SA (CORREOS)
In April 2013, the NCC imposed a fine of more than €3 million on Correos for having abused its dominant position in the wholesale market for access services to the public postal network and in the retail services market for administrative notifications.
According to the NCC, the anti-competitive conduct carried by Correos resulted from an unjustified refusal to continue providing wholesale access services to the public postal network for administrative notifications.
This conduct by Correos would represent a barrier to the entry of other competitors into the provision of administrative notification services. Further, the NCC acknowledged this conduct may have significant exclusionary effects on its competitors.
In December 2012, the Council of the NCC imposed a fine of €46.5 million on Telefonica, €43.5 million on Vodafone and €30 million on Orange for abusing their collective dominant position in the wholesale markets for SMS and MMS access and origination, and their individual dominant positions in the wholesale markets for SMS and MMS termination on their respective networks from 2000 to 2009.
The NCC found that each of these operators held a monopoly on the wholesale market for SMS and MMS termination on their respective networks. In addition to that, the NCC found that the three operators held a collective dominant position in the wholesale markets for SMS and MMS access and origination.
The NCC claimed that the three operators had charged excessive termination rates during the period in question that allowed them to set high retail prices by merely passing the termination rates on to the retail prices. The NCC took into account that the wholesale markets for SMS and MMS termination were not subject to price regulation. The NCC also claimed that the three operators had carried out a pricing policy in the wholesale markets for SMS and MMS access and origination, which was consistent with the setting of high termination rates by imposing high access and origination rates aimed at preventing MVNOs from entering the retail market.
In November 2012, the NCC fined Mazda Automóviles de España, SA €182,000 for restricting the provision of repair and maintenance services by independent workshops, as well as the use of spare parts and access to technical information required for the maintenance and repair of Mazda vehicles in Spain.
Thereby, these practices restricted competition in the market for the provision of repair and maintenance of Mazda vehicles during the term of the manufacturer’s warranty from independent workshops, using mainly the limitation of freedom of choice to the owner of the vehicle.
This infringement was initiated on 2005, consisting of a set of clauses and behaviours that had the objective of restricting competition that can generate independent workshops in the provision of repair and maintenance of vehicles Mazda under warranty.
CEOE/Joan Gaspart Solves
In September 2012, the NCC imposed fines on the CEOE and Joan Gaspart of €150,000 and €50,000 respectively. The NCC was informed by various media in a statement made on January by D Joan Gaspart (chairman of the CEOE) the International Tourism Fair in Spain and on subsequent occasions, which highlighted the need to raise prices of hotels in Spain.
The NCC considered that these statements qualified as a collective recommendation to promote a common pattern of behaviour among competing agents and hotel owners consisting of increasing the price of their services, and were intended to promote the alignment of corporate behaviour respect to increasing hotel prices to be applied in 2011.
This was the first time the NCC sanctioned legal representatives of the undertakings or associations responsible of anti-competitive conduct.
In August 2012, the NCC sanctioned SEDIGAS and AOGLP, with fines of €900,000 and €500,000 respectively, for recommending the price of periodic inspection services for installations receiving natural gas and LPG, the connection, hook-up and checking of installations of those installations and the emergency response service.
Through these associations, the distributors would have agreed the prices that the authorities of the Autonomous Regions should recommend to apply, as well as the justification for those figures, the need to recommend that they be updated annually and the way in which this information would be provided to the Autonomous Regions.
The NCC considered that distributors, through their associations, had coordinated their behaviour in terms of costs, prices and updates thereof. This case has been appealed before the Audiencia Nacional and the proceedings are still ongoing.
General Society of Authors and Editors (SGAE)
In July 2012, the NCC imposed a fine of €1.8 million on the General Society of Authors and Editors (SGAE) because it was considered to have abused its dominant position in a related management intellectual property rights market.
SGAE had carried out some practices in the application of unfair fees relating to authorisations for the public broadcast of musical works at wedding, baptism and communion dances or at dances that guests attended by personal invitation.
Such infringement constituted an abuse of its dominant position by the application of discriminatory and no transparent discounts, and the introduction of a substitute fee, which was unfair and discriminatory.
In June 2012, the NCC imposed fines of €1.9 million and €1.4 million on copyright collecting societies AIE and AGEDI, respectively, considering that they had abused their dominant position in the intellectual property rights collection market.
Furthermore, the NCC considered that the general rates set by AGEDI and AIE, which would have been imposed on the television operators from 2003, qualify as unfair rates, as they did not respond to criteria that in any way established a fair relationship with the value of the service provided.
The performance of AGEDI and AIE was not in conformity with the necessary transparency, objectivity and proportionality that are required of entities that are in the position of being the only collecting societies for intellectual property rights that are essential for the development of the television operators’ business activities.
In February 2013, the NCC sanctioned Mediaset with a fine of €15.6 million for failing to comply with the commitments contained in the Resolution dated 28 October 2010, by means of which the merger between Telecinco and Cuatro had been authorised.
Previously, on 6 June 2012, the NCC had issued a resolution noting that Mediaset would have breached several commitments it had voluntarily assumed in order for the merger be authorised. Specifically, the NCC Council concluded that:
- Mediaset had breached its obligation to functionally separate Publimedia and Publiespaña, as both companies shared a number of members in their governing bodies;
- Mediaset had unreasonably delayed the waiver for preferential acquisition rights of audiovisual content. Also, the company would have delayed the granting of stock options to adjust the duration of the contracts (and, in some cases, it had not even offered them). Mediaset would have also included certain contractual clauses by means of which third parties were prevented from purchasing audio-visual contents; and
- in general, the company did not comply with its obligations under competition rules as it would have developed a strategy for the sale of advertising, which was reinforced by the introduction of a new commercialisation model.
In December 2012, the NCC imposed a fine of €0.8 million on Redsys, SL for breaching certain commitments assumed in the merger between Redsys and Redy.
The NCC concluded that the company had not complied with its commitments under a resolution dated 14 March 2011. According to the competition authority, Redsys had not complied with its obligation to keep separate the management of the processing entity and the payment systems. The purpose of such separation being the intention to prevent the risk of eventual unlawful information exchanges between the Servired and 4B systems, through Redsys. The lack of proper differentiation between the relevant bodies would have permitted the parties to coordinate strategies in the downstream market for the provision of payment services.
In October 2012, the NCC imposed a fine of €286,000 on Verifone Company for breaching its obligation to notify and request authorisation for a concentration. On 10 November 2011, the NCC received the complete notification form of the merger, which implied the acquisition of sole control of Hypercom by Verifone. The merger was cleared in the first phase, subject to compliance with certain commitments determined by the NCC Council on 29 December 2011.
Despite the foregoing, the NCC concluded that Verifone had executed the acquisition of Hypercom on 4 August 2011 – prior to the filing of the notification to the NCC – and such conduct should be subject to the applicable penalties under competition rules.
Cementos Portland Valderrivas
In June 2012, the NCC imposed a fine of €1.3 million on Cementos Portland Valderrivas (CPV) for breaching its obligation to cooperate with the NCC in the framework of procedure S/0179/09.
According to the NCC Council, CPV provided incomplete, incorrect, misleading or false information in their responses to various requests for information submitted by the NCC. The requests for information related to certain data on the structure of subsidiaries and affiliates of CPV in the relevant market.
Prolongation of the Spanish Guarantee scheme for credit institutions
On 14 October 2008, Spain notified a scheme for the creation of a debt guarantee scheme, which was approved by the European Commission in December 2008. In this regard, Spain intended to prolong the scheme designed to preserve stability in the financial system and to remedy a serious disturbance to the economy in Spain. Moreover, the measure aimed at limiting the risks and re-establishing confidence in the financing mechanism of credit institutions, and to increase lending to businesses and households.
As stated in the EC decision dated 6 February 2013, the overall budget of the scheme remained unchanged. In that sense, the debt instruments to be guaranteed by Spain under the scheme, up to a previously approved total amount of €100 billion, comprising emissions of debt certificates and bonds admitted to the official secondary markets in Spain with a maturity of between one and five years. Those instruments must not be covered by any other type of guarantee. Subordinated debt is not an eligible instrument under the scheme.
The EC considered that the scheme constituted state aid within the meaning of article 107(1) TFEU as it concerned the provision of state resources to a certain sector, such as the financial sector, which is open to intense international competition.
Accordingly, the EC decided not to raise objections against the prolongation of the scheme for 2013 since it fulfilled the conditions to be considered compatible with the internal market.
Ciudad de la Luz SA
Ciudad de la Luz is a major film studio complex in Alicante in which the Valencia regional government held 100 per cent of its share capital via SPTCV (a public company). The complaints that initiated this procedure alleged that illegal state aids had been granted in favour of Ciudad de la Luz and, especially, in the system of film-specific incentives. Accordingly, SPCTV conducted numerous investments with the aim of developing the most important film studio complex in Europe.
The EC noted that the Generalitat Valenciana funded the investment through its fully owned investment arm SPTCV and that the studies that led to the public investment in Ciudad de la Luz were carried out for the Generalitat Valenciana. Hence, these assignments must be considered as state resources. In essence, it was considered that the project granted a selective economic advantage to Ciudad de la Luz because it was publicly funded, and therefore it distorted competition and had an effect on the trade between member states.
In this regard, in January 2013, the EC declared that Spain granted state aid to Ciudad de la Luz in breach of article 108.3 TFEU. Thus the EC decided that the Spanish authorities shall recover the incompatible aid granted from the beneficiary.
Rescue aid to BFA/Bankia
On 29 June 2010, the FROB informed the Commission that it had decided to subscribe €4.5 million of convertible preference shares issued by BFA under the recapitalisation scheme approved in the FROB decision. Based on BFA’s financial accounts as of 31 December 2009, the amount of aid requested represented 2 per cent of the risk weighted assets of BFA. That aid measure was based on the Spanish recapitalisation scheme, which had been authorised in the FROB decision on 28 January 2010.
Furthermore, the Spanish authorities informed the EC that the Bank of Spain considered it unlikely that BFA will redeem or repurchase the convertible preference shares within the prescribed period. As a result, the FROB wanted to trigger the conversion option. Accordingly, the initial capital injection subscribed in 2010 by the FROB (€4.5 million) will be converted into equity.
In June 2012, the Commission concluded that:
- the conversion was appropriate because it simplified the ownership structure of BFA and, therefore, put it into a better position to address its problems in a restructuring phase;
- the liquidity guarantee was appropriate because it addresses the funding needs of BFA and its subsidiary Bankia for keeping BFA and Bankia as a going concern in the market; and
- a number of commitments ensured that the aid was proportionate.
Accordingly, the EC decided that the measures notified constitute state aid pursuant to article 107.1 TFEU. In fact, the EC found that those emergency measures in favour of BFA and Bankia were temporarily compatible with the internal market for reasons of financial stability on the basis of article 107.3.b TFEU. For that reason, the measures were accordingly approved for six months or, if Spain submitted a restructuring plan within six months from the date of this decision, until the EC has adopted a final decision on that way.
As stated above, there have been many other cases in which state aid was granted to banking entities by the Spanish authorities: state aid for Restructuring of CAM and Banco CAM (SA.34255 (2012/N)); state aid for Restructuring of Catalunya Banc SA (SA.33735 (2012/N)); state aid for Restructuring of Nova Caixa Galicia (SA.33734 (2012/N)); and state aid for Recapitalisation and Restructuring of Banco de Valencia SA (SA.34053 (2012/N)).
Trends, developments and strategies
In recent years, the NCC has intensified its pursuit of cartels and other serious offences thanks to the enhanced authority conferred by the SCA that gives it new powers and instruments that have been developed gradually over the past five years. In fact, the number of cartel decisions and overall fines has increased in this period compared to previous years, as a result of the increased number of cases investigated by the NCC.
In accordance with the NCC’s 2012 Annual Report, it must be highlighted that there has been an increasing number of prosecutions by the NCC during recent years because of the existence of potential anti-competitive conducts.
As announced in its 2012 Annual Report, the NCC will continue to fight against cartels in the following years. To this end, the number of inspections will increase in order to avoid every anti-competitive conduct that could appear in the Spanish market.
The main weapon that NCC will use to avoid or detect future cartels is the leniency programme, which its successful implementation has not only made possible to detect cartels through leniency applications filed by cartel members, but has also acted as a cartel destabiliser and, therefore, as a deterrent to future cartel arrangements.
In connection with the leniency programme, the NCC recently published its communication seeking to enhance transparency and the predictability of its actions in those proceedings in which applications are filed for exemption from payment of or reduction of the fine. In addition, this communication constitutes the basic guidelines regarding how to proceed in relation to the leniency application, as well as the essential obligations and requirements to apply for leniency.
- See article 4.4 of Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation). ↑
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