The European Antitrust Review 2015 • Section 4: Country chapters
The Spanish National Markets and Competition Commission (CNMC) is a new authority with the combined functions of enforcing competition rules and regulating economic sectors. The authority is committed to ensuring that mergers concerning different economic sectors take place in accordance with the law and that competition takes place on a level playing field for all companies in all sectors, and is also in charge of regulating key economic sectors to foster competition in the markets and economic welfare.
Petrocat, a Spanish company active in the petrol market, had three shareholders before the transaction: Repsol (45 per cent), Cepsa (45 per cent) and the regional government of Cataloni through the ‘Institut Catalá d’ Energia’ (10 per cent). Through this transaction, Repsol bought Cepsa’s shares and acquired exclusive control over Petrocat (90 per cent). The CNMC assessed this transaction from a regulatory perspective as well as under traditional merger control rules, and took the view that the transaction posed competition concerns in the fuel distribution sector as it reinforced Repsol’s vertical integration and eliminated a competitor. In April 2014, the CNMC issued a Phase I clearance decision subjecting the approval to the fulfilment of several conditions offered by Repsol, including the sale of 23 service stations, the transfer to a third party of the management of one specific service station and a promise from Repsol to maintain third-party supply to several service stations.
Boyacá/Redeprensa (Case C/0508/13)
In August 2013, the CNMC issued a Phase II clearance decision authorising the acquisition by Boyacá of sole control over a group of companies active in the wholesale distribution of periodicals. The transaction was subject to several conditions affecting the exclusivity contracts signed with editors, imposing the maintenance of conditions with current editors for a five-year period and the obligation to offer distribution services to third parties in the same conditions already offered to other editors. Further, Boyacá was required to maintain for five years the commercial conditions applicable to points-of-sale that maintain commercial relationships with the acquired distributors. Boyacá is also prevented from forcing points-of-sale to sell other types of products.
In March 2014, the CNMC unconditionally cleared the acquisition by Springwater Capital and Gowaii Vacation Holding of joint control over the travel agency business (both wholesale and retail) and the air transportation business of Pullmantur. A quick clearance was obtained partly because of the absence of overlaps between the parties’ activities. Although an overlap existed in the travel agency businesses, combined market shares were very low.
Embotelladores Coca-Cola (Case C-0490/13)
In February 2013, the CNMC cleared a merger between the existing bottlers of The Coca-Cola Company in a transaction that concerned all assets related to the bottling business of Coca-Cola products in Spain, Andorra and Portugal. Before filing the transaction with the Spanish CNMC, the parties approached the European Commission, who confirmed that the transaction did not qualify for an EU filing. The parties had to conduct several spin-offs and business reorganisations to exclude from the transaction other businesses and assets that were not going to be merged with other bottlers. Market shares resulting from this transaction were in general very high and close to 100 per cent in certain segments (eg, supply of branded cola-flavoured carbonated drinks to hotels, restaurants and bars). However, the transaction generates a reduced impact on the market because, prior to the transaction, the different bottlers had specific territories assigned (implying that local customers had only one supply source), had a joint purchasing agreement (and therefore suppliers negotiated with all bottlers at the same time) and the main clients negotiated with all the bottlers at the same time (since the bottlers had a specific company – Coca-Cola Gestión – dedicated to negotiating supplies to large or multinational customers). The CNMC took the view that, despite the high market shares, impact on the market was in practice extremely limited.
2013 was a key year for Spain’s banking restructuring process and numerous mergers between financial entities have taken place. Most of these transactions involve the acquisition of sole control over other entities, such as the purchase of Banco Gallego by Banco Sabadell; Banco Grupo Cajatres by Ibercaja Banco; CAM-Aegon Holding Financiero by Banco Sabadell; Banco Mare Nostrum by Banco Sabadell; Finanmadrid, Establecimiento Financiero de Crédito, a subsidiary of Bankia, by the investment fund Apollo; L’Aliança by Divina Pastora; Aseval by Bankia; Cajasol Seguros Generales Sociedad de Seguros y Reaseguros, Cajasol Vida y Pensiones de Seguros y Reaseguros, y Cajacanarias Aseguradora de Vida y Pensiones de Seguros y Reaseguros, by Caixabank; and the acquisition of the retail banking business in Spain of Lloyds TSB Bank by Banco Sabadell.
These transactions have been cleared by the CNMC in Phase I
decisions without commitments given the little impact on competition in the markets and the absence of any obstacles to the maintenance of effective competition in the relevant markets. Low barriers to entry due to the liberalisation of the Spanish financial system following the European harmonisation have also fostered these transactions and advocate for unconditional clearances.
In July 2013, the CNMC imposed fines of up to €5.5 million to several car rental companies that reached price-fixing agreements, including minimum fares, price ranges or, in some cases, even the margins granted to certain brokers. The CNMC concluded that the conduct of the parties constituted a breach of both the Spanish Competition Act and article 101 of the Treaty on the Functioning of the European Union. By applying for the leniency programme, the company Sol Mar Alquiler de Vehiculos, SL, avoided the fine it would have otherwise had to face.
AENA Commercial Services
In January 2014, the CNMC sanctioned AENA and 11 concessionary companies operating car rental businesses from certain Spanish airports. The parties exchanged commercially sensitive information and fixed commercial conditions between 1999 and 2012. Aena issued monthly reports to the rental companies that allowed the companies to gain a precise knowledge of the market shares and the evolution of its competitors, which eventually led to a distortion of competition. The CNMC took into account in its decision that this behaviour had similarities with the previous case concerning the wider car rental market (operating outside airports).
Antitrust: restrictive agreements and dominance
Public postal service – Correos
In January 2014, the CNMC imposed a fine of over €8 million on public postal provider Correos for abusing its dominant position by means of a margin squeeze that prevented alternative operators to compete in the market for large customers. According to the CNMC, Correos applied higher discounts to large customers than to alternative operators that used the universal postal service network even if these operators contracted a sufficiently large amount of postal services. This price differential implied that alternative operators were incapable of offering their services without incurring losses. Alternative postal operators as efficient as Correos that relied on the postal network of Correos could not profitably offer their services replicating retail prices applied by Correos.
In addition, the CNMC considered that the outcomes of some public tenders concerning the provision of the traditional postal services were also affected by the conduct of Correos since alternative operators were at a disadvantage in relation to Correos when submitting their offers.
On 6 March 2014, the CNMC issued a decision exonerating Telefónica Móviles de España, SAU; Vodafone España, SAU; and France Telecom España, SA (Orange) of an alleged abuse of a collective dominant position. The proceedings were initiated by a complaint by British Telecom in which it argued that those companies held individual dominant positions in the wholesale markets for call termination on mobile voice, and held a collective dominant position in the wholesale market for access and call origination on one hand and in the retail market for mobile voice calls on the other hand. According to the Directorate for Investigation, the companies would have conducted individual abuses benefiting from the collective dominant position in the upstream markets. However, the CNMC ultimately concluded that despite the collective dominant position held by these companies, there was insufficient evidence to declare the existence of exclusionary effects derived from the alleged margin squeeze practice apparently followed by the three companies.
In March 2014, the CNMC issued a decision declaring that Asnef-Equifax had not abused its dominant position. This decision shelved a complaint from Ibercheck Soluciones for alleged anti-competitive behaviour. According to the complainant, Asnef-Equifax held a dominant position in the Spanish market for information on defaults by private individuals and in the market for debt databases. The CNMC ruled out the existence of unjustified refusal to deal and confirmed that Asnef-Equifax had behaved in an objective manner and had not imposed unfair prices.
In August 2013, the CNMC imposed a new fine on the Spanish copyright collecting society, AGEDI, for abusing its dominant position on the management in Spain of the intellectual property rights of producers of phonograms and music videos regarding jukeboxes. The anti-competitive behaviour consisted in refusals to supply and the imposition of service conditions, including the obligation to acquire and renew specific repertories on a monthly basis.
In February 2014, the CNMC confirmed that ABH, ISMA and CONSENUR had not breached article 1 of the Spanish Competition Act in the transport and treatment of sanitary waste industry in the Balearic Islands. The investigation was triggered by a complaint from a new entrant into the market who argued that its competitors had market and client-sharing agreements in place. According to the complainant, some companies had agreed to limit their activities to sanitary waste collection, while another competitor was only active in treatment and processing activities (and in fact operating the only available plant in the Balearic Islands). Additionally, those players active in collection activities agreed to share clients and not to bid for each other’s traditional customers.
According to the case handler, the cartel included market and client sharing agreements, price-fixing agreements and even collective efforts to prevent the complainant from entering the market. However, little evidence was found on price-fixing or market/client sharing agreements, and the only evidence of a boycott to the new entrant was legal claims filed against the new entrant on environmental and sanitary grounds. The exercise of legal rights such as filing complaints before competent authorities did not hold as proof of an antitrust infringement. The accusation therefore rested on the presumption that the company operating the only available processing plant had not entered collection activities because an agreement was in place with other market players.
Although the Directorate for Investigation proposed to fine the companies for a hard-core cartel, the Council – in charge of issuing final decisions – declared that no infringement had been proven and shelved the investigation. The Council’s arguments included references to the presumption of innocence, reasonable doubt, as well as the freedom of enterprises to determine whether they want to expand their activities or not.
Football broadcasting rights
In September 2013, as a result of a complaint filed by Agrupación de Operadores de Cable, the CNMC initiated proceedings and finally issued a decision declaring that no infringements of articles 1 and 2 of the Spanish Competition Act or of articles 101 and 102 of the TFEU were found in the conduct of Prisa Televisión SAU, Distribuidora de Televisión Digital SA (DTS) and Mediaproducción SL.
In 2011, Mediapro and DTS entered into an agreement to package into a channel all the football matches of the Spanish football competition La Liga and the Kings Cup (Copa de SM el Rey), previously sold on a pay-per-view channel, with a clause that obliged DTS to offer such channel to every market operator in equal market conditions. According to the complainant, this action would reinforce DTS’ dominance on the market of pay-TV since it would be in a position to impose discriminatory conditions.
The CNMC concluded that there was no evidence of such abuse of a dominant position by Mediapro because it resold the rights without breaching the obligations of transparency, objectivity or non-discrimination.
Port of Valencia
In September 2013, the CNMC imposed a range of fines from €200,000 to €13 million on several associations of transport companies and shipping companies, the Department of Infrastructure and Transport in the region of Valencia, the Port Authority of Valencia, as well as on terminal operators for having restricted competition in the market for transportation of containers of the port of Valencia. The CNMC found that such anti-competitive behaviour constituted a single and continuous infringement that restricted competition from 1998 onwards since the parties had agreed to apply the same price on road transport as well as on other elements of price such as the impact of increases in fuel prices.
Essilor/Polycore (Case C/0556/14)
In February 2014, the CNMC authorised Essilor International, a company active in the ophthalmic lenses market, to acquire exclusive control over Polycore, also active in the same market. However, since the acquisition was executed in July 2013, before any filing to the authority was made, the CNMC initiated sanctioning proceedings against Essilor for a possible breach of its obligation to notify a concentration before proceeding with the implementation. The case is currently pending resolution by the CNMC.
Orange (Case SNC/0028/13)
In July 2013, the CNMC imposed on France Telecom Spain SAU (Orange) a fine of €61,600 for infringing the obligation to notify a transaction prior to its execution. The transaction involved the acquisition of exclusive control by France Telecom Spain over KPN Spain (Simyo) through an acquisition contract complemented by a licence agreement of the brand Simyo, a contract for the temporary provision of services and a contract for strategic cooperation between Simyo and Ortel Mobile Spain. The CNMC considered that the wholesale call termination service in each network was a relevant market for the purposes of the market share threshold. As any operator has by definition a 100 per cent share in its own network regarding call termination services, the CNMC found that the transaction met the market share threshold and was therefore subject to mandatory notification. In addition, the CNMC considered that the transaction also met the turnover threshold as the turnover contained in the audited annual accounts should be modified in order to include additional sales. The authority imposed on Orange a fine of 0.1 per cent of the turnover in the relevant market. When deciding the fine, the CNMC took into account the cooperation shown by Orange and the speed with which it notified the transaction.
Mediapro and Football Clubs II
In November 2013, the CNMC imposed a fine on Mediapro and four Spanish football clubs (Real Madrid, Fútbol Club Barcelona, Sevilla Fútbol Club and Racing de Santander) for failing to comply with the commitments contained in the Resolution of the CNMC dated 14 April 2010, regarding the acquisition of broadcasting rights of Spanish football competitions. According to the CNMC, the contracts signed by the parties on the rights of Spain’s Liga and Copa de SM el Rey exceeded the three-year limit established by the CNMC in a previous Resolution and were agreements prohibited by article 101 TFEU. In addition, Mediapro provided the authority with false information and omitted the existence of other additional agreements with Fútbol Club Barcelona and Real Madrid. The CNMC found these practices to be very serious breaches of effective competition and imposed fines on all parties.
Regulated electricity tariffs – consumers
In February 2014, the EC issued a decision declaring that a measure adopted by Spain regarding regulated electricity tariffs does not constitute an aid as defined in the EC Treaty state aid rules. In 2005, Spain set artificially low regulated tariffs for energy intensive, large and medium industries that led to a deficit of €3.8 billion in the electricity system and that will have to be repaid over 14 years by adding a new charge to the electricity bill of all Spanish consumers. The EC had doubts regarding the compatibility of the measure, which had the effect of providing a guaranteed profit to the electricity incumbents who offered these industrial tariffs. Besides, potential new suppliers may have been prevented from entering the Spanish electricity market and the scheme may have prompted some recent market entrants to discontinue their activities in Spain, thus eliminating the benefits that new entrants were bringing to consumers. The public version of the decision is not yet available, but the EC has disclosed its conclusion that the measure is not an aid in the sense of article 107.1 of the TFEU.
Deployment of digital terrestrial television (DTT)
Between 2005 and 2008, Spain adopted a series of regulatory measures to manage the switch from analogue to digital terrestrial television (DTT) and granted €260 million to finance the digitisation and extension of the terrestrial television network in remote areas of Spain. Spain did not notify this project to the European Commission and in 2010, following a complaint from a satellite platform operator, the Commission opened an in-depth investigation into this public financing of the DTT infrastructure.
On 19 June 2013, the EC declared that the scheme was incompatible with EU state aid rules since the measure favoured terrestrial digital technology to the detriment of others as alternative transmission platforms such as satellite, cable or the internet could not effectively benefit from those subsidies. The EC added that the operators of terrestrial platforms received a selective advantage over their competitors using other technologies and that therefore they had to pay it back to the Spanish taxpayer.
State aid to certain Spanish football clubs
In December 2013, the European Commission opened three distinct in-depth investigations to verify whether various public support measures in favour of certain Spanish professional football clubs were in line with EU state aid rules. None of the measures had been notified to the Commission, who was alerted by concerned citizens. The Commission has concerns that these measures provided significant advantages to the beneficiary clubs to the detriment of the clubs which have to operate without such support. The Commission will investigate possible tax privileges for Real Madrid CF, Barcelona CF, Athletic Club Bilbao and Club Atlético Osasuna. In another inquiry, it will assess whether a widely reported land transfer between the City of Madrid and the club Real Madrid CF involved any state aid in favour of the club. Finally, it will examine the compliance with EU state aid rules of guarantees given by the state-owned Valencia Institute of Finance for loans that were used to finance the three Valencia clubs Valencia CF, Hercules CF and Elche CF, while those clubs were seemingly undergoing financial difficulties.
Insofar as the professional football clubs in question were facing financial difficulties at the time of the measures under scrutiny, they must be assessed on the basis of the EU guidelines that allow member states to grant aid for the rescue and restructuring of companies in difficulty if certain conditions are met. At the time of writing, the Commission has doubts whether the measures comply with the guidelines, in particular because Spain has submitted no restructuring plan demonstrating how the clubs could become viable again while limiting the distortions of competition brought about by the state support.
Girona and Reus airports – aid to Ryanair
In May 2012, the Commission received a complaint from an airline with operations in Barcelona-El Prat airport about marketing agreements related to Ryanair’s operations at the nearby Girona and Reus airports. The agreements related to the advertising of the regions concerned and contained various conditions related to the presence and scale of operations of the airlines at the two airports. As a result, in October 2013, the Commission opened an in-depth investigation to assess whether marketing agreements concluded between public authorities and airlines using Girona-Costa Brava and Reus airports in Catalonia were in line with EU state aid rules. In the investigation, the Commission will also verify whether Girona and Reus airports themselves may have benefitted indirectly from the marketing agreements, since the agreements might relieve the airports of costs that they would otherwise normally bear in developing their activities.
On the basis of the information at its disposal, the Commission cannot exclude the fact that the marketing agreements give the airlines or the airports involved an undue advantage in relation to their competitors, and are thus incompatible with the internal market.
Spanish aid for the acquisition of ships – Spanish tax lease
In June 2011, following a series of complaints lodged mainly by shipbuilding operators in different member states, the Commission launched an in-depth investigation into the Spanish scheme for leasing and financing through tax relief. This scheme, which was not notified to the EC, was set up in 2002 and conferred a selective advantage on economic interest groupings and their investors over their competitors. According to it, a maritime transport company could purchase a ship via a complex contractual and financial structure involving an economic interest grouping, an investment vehicle, with tax transparency, held by investors wishing to reduce their basic taxable amount, rather than directly from a shipyard.
In practice, the economic interest grouping acts on behalf of the maritime transport company purchasing the ship, acquires it on a financial leasing basis and pays it off in the three to five years after work starts on its construction. The economic interest grouping then benefits from taxation exclusively on the basis of tonnage, which is a special scheme applicable under the European rules to maritime transport companies, and hands the ship over to the transport company without paying capital gains tax. The maritime transport company acquires the ship with a reduction ranging from 20 per cent to 30 per cent on the purchase price charged by the shipyard.
The Commission disputes the application to economic interest groupings of tonnage tax, which should apply only to eligible maritime transport companies within the meaning of the Guidelines on state aid for shipping and not to investment vehicles or ship lessors. In short, the economic interest groupings and their investors did benefit from incompatible aid which distorted competition on the EU single market. As a result, on 17 July 2013, the Commission issued a decision declaring that the Spanish scheme for the purchase of ships involving leasing and financing through tax relief is partly incompatible with EU rules on state aid since Spain has unlawfully implemented the aid in question in breach of article 108, paragraph 3,
of the TFEU. Consequently, the beneficiaries must repay the aid to the Spanish state.
Trends, developments and strategies
One of the CNMC’s aims is to increase the culture of competition among companies in order to make them aware of the benefits of the existence of fair play in the market. For this reason, following the previous trend, the new authority continues to intensify its pursuit of unlawful agreements between companies with the objective of stimulating competition, and therefore obtaining higher productivity and competitiveness for Spanish companies.
In May 2014, the CNMC published its Strategic Plan in which it identifies three main goals and established different strategic activities for ensuring the institution functions in an efficient manner.
In this regard, the new entity will continue to stringently pursue practices that are harmful to competition – particularly cartels – and as a result it will increase its official action in markets. In addition, it will ensure the continuous improvement of detection, inspection and investigation procedures.
The CNMC will complement its disciplinary action by furthering its educational capacity in order to maximise the dissuasive effect of adverse behaviour with the correct operation of markets. The new authority will increase its cooperation with the European Union Network of Competition Authorities and other international authorities, and cooperate with regulators and multinational bodies.
With the aim of encouraging competition and efficient economic regulation, it will develop, while respecting the separate concepts of investigation and resolution, mechanisms for communication and rapid decision-making between chambers, investigation departments and other CNMC sectors.
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