Immunity & Sanctions

Last verified on Sunday 24th May 2020

Immunity & Sanctions: Spain

Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Gibson Dunn & Crutcher LLP , Gibson Dunn & Crutcher LLP

Immunity or a 100 per cent reduction in sanctions

1. What benefits are available to the first applicant to qualify?

Spain

Preliminary considerations

In Spain, the main enforcer of Spanish and EU competition law is the National Markets and Competition Commission (the CNMC). Law 3/2013 of 4 June provided for the creation of this single regulatory body in Spain, combining the functions of the former National Competition Commission and Spain’s regulators on energy, telecommunications, media, post and transport sectors. 

The main provision of Spanish law that prohibits cartel conduct is article 1 of Law 15/2007 of 3 July (the Spanish Competition Act, or the SCA). The terms of article 1 of the SCA are virtually equivalent to article 101 of the Treaty on the Functioning of the European Union (TFEU). Furthermore, articles 65 and 66 of the SCA provide the legal basis for the grant of leniency and immunity from fines for cartel participants. 

The SCA has been further implemented by the Regulation on the Defence of Competition, adopted by Royal Decree 261/2008, of 22 February (RDC). The RDC elaborates on a number of specific aspects of the SCA including, among others, the basic features of Spain’s leniency and immunity programme.

In June 2013, the CNMC published a Communication on the Leniency Programme (the Communication on the Leniency Programme, or the Communication). The Communication has the objective of enhancing the transparency and predictability of Spain’s leniency programme. As specifically set out in the Communication, the SCA’s leniency programme would also apply to those cases in which the CNMC applies article 101 of the TFEU (section 1.2, paragraph (9) of the Communication). 

The leniency programme has been applied in over 30 cases since its entry into force in Spain in 2008. For example, in 2019, the CNMC imposed fines up to €118 million on 15 companies, and €666,000 on 14 managers, for the activity in various cartels of sharing public tenders called by the Spanish train and railway incumbents (S/DC/0598/16 Railway Electrification and Electro-mechanics). Also, in October 2019, the CNMC imposed fines of €53.2 million on 19 companies, and of €280,500 on eight managers involved, for cartelising their activities in the industrial assembly and maintenance sectors (S/DC/0612/17 Industrial Assembly and Maintenance). It also imposed fines of €1,955,000 on 26 companies and two trade associations for the creation of a cartel in the school transportation sector in the region of Murcia (SAMUR/02/18 School Transportation in Murcia).    

Finally, Law 1/2002, of 21 February, establishes the principles governing the allocation of competences between the CNMC and Spain’s regional competition authorities. Spain’s regional competition authorities may only exercise their enforcement powers in relation to infringements whose effects are limited to its specific jurisdiction. The SCA leniency programme has been applied once (S/DC/0538/14 Photograph Services) to a leniency request submitted before the competition authority of the Region of Madrid, which referred the case to the CNMC.

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The first qualifying applicant will obtain full immunity from the fines that would otherwise be imposed by the CNMC for the cartel behaviour it has reported (article 65(1) of the SCA).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

2. Do the protections extend to current and former officers, directors and employees?

Spain

Article 63(2) of the SCA provides a legal basis for the CNMC to impose fines of up to €60,000 on those individuals who form part of the management body or on the legal representatives of entities that have participated in unlawful conduct. For a number of years, the CNMC had not traditionally applied this provision. However, in its judgment of 29 January 2015 in Case 2872/2013, the Supreme Court encouraged the CNMC to impose fines on directors and representatives that have participated in unlawful conduct. Thus, in recent cases, the CNMC has changed its decisional practice and it has started to impose fines on legal representatives and managers. Initially, the fines imposed on managers ranged between €4,000 and €32,000 (CNMC Decisions in Cases S/DC/0504/14 Adult Diapers; S/DC/0519/14 Rail infrastructures; S/0555/15 Cash transport; and S/DC/0545/15, Asturias concrete). In 2019, fines imposed on managers have been set at the higher end of the range allowed by the SCA, generally between €40,000 and €60,000 (see Cases S/DC/0598/2016 Railway Electrification and Electro-mechanics and S/DC/0612/17 Industrial Assembly and Maintenance). 

Pursuant to article 65(3) of the SCA, any immunity granted under the SCA to a corporation or group of undertakings (“undertaking” in EU/Spanish competition law terms) is automatically extended, if the entity seeking immunity so requests it, to the individuals who were affiliated to the entity seeking immunity when participating in the cartel, “provided that they have cooperated with the National Markets and Competition Commission” (see also section 1.3, paragraph (12) of the Communication on the Leniency Programme). For example, in Case S/DC/0598/2016 Railway Electrification and Electro-mechanics, the benefits of the immunity granted by the CNMC to certain Alstom companies in Spain also extended to three managers of the group. In Case S/DC/0504/14 Adult Diapers, the benefits of the leniency granted by the CNMC extended to a former employee who did not work for the leniency applicant any longer.

Finally, it should be noted that the SCA’s leniency programme does not cover infringements of the Criminal Code or of related non-competition law infringements (ie, infringements of Spanish financial regulations). This is particularly relevant as the Spanish Criminal Code provides custodial sentences from six months up to two years, together with daily fines ranging from one to two years for those undertakings that distort the prices in such a way that they prevent free competition (ie, altering prices) (article 284 of the Spanish Criminal Code). Also, article 262 of the Spanish Criminal Code provides custodial sentences from 12 months up to 24 months to those that collude to alter the price of the bids submitted in public tenders.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

3. Is immunity available after an investigation begins?

Spain

Yes. The objective of the SCA is not only the detection of new cartels, but also to assist with “mak[ing] progress” in the investigation of those cartels that have already been detected and to “support the investigatory activity of the CNMC” (section 1.2, paragraph (6) of the Communication on the Leniency Programme). 

Accordingly, when the CNMC has already launched an investigation, an undertaking may still obtain full immunity from fines. This will be the case if: (i) no other undertaking has already applied for or been granted immunity; and (ii) the applicant is the first to provide the CNMC with relevant information and evidence.

As regards the second condition, in order for information or evidence to qualify as relevant for the CNMC, it needs to enable the authority to: (i) carry out an inspection in connection with an alleged cartel (irrespective of its outcome) (section 3(1) paragraph 36 of the Communication); or (ii) establish an infringement of article 1 of the SCA in connection with an alleged cartel.

Moreover, the applicant should meet the requirements of cooperation that are common to applicants for immunity or reduction in fines (article 65(1) and article 65(2) of the SCA; and section 1.2, paragraph (7) and section 3.1, paragraph (36) of the Communication).

Article 47(2) of the RDC precludes the CNMC from accepting requests for immunity after it has issued its formal accusations against an undertaking. At that point, only requests for the reduction of the fines proposed can be made.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

4. What are the eligibility requirements before an investigation begins?

Spain

To be eligible for immunity before an investigation begins, an applicant must be the first to supply the CNMC with information and evidence that allows the authority to carry out an inspection of the alleged cartel, or to provide the CNMC with information enabling it to establish an infringement of article 1 of the SCA in relation to a cartel. “Cartels” are defined in the SCA as any secret agreement among two or more competitors that has as its object the setting of prices or shares of production or sales, the sharing of markets, including fraud in submitting bids, and the restriction of imports and exports.

To be eligible for leniency, the SCA requires applicants: (i) to cooperate fully, continuously and diligently with the CNMC as established in the RDC; (ii) to put an end to the participation in the alleged infringement, unless a waiver is obtained from the CNMC; (iii) to preserve the integrity of the evidence and the secrecy of the leniency application (disclosures made to the European Commission or to other competition authorities being exempted from this rule); and (iv) to not have adopted measures to oblige other undertakings to participate in the infringement (article 65(2) of the SCA).

A formal request for leniency or immunity before an investigation begins can be submitted orally (at the previous request of the applicant) or in writing, and it shall include the following elements (article 46(1), (2) and (3) of the RDC):

  • The name and address of the legal entity submitting the immunity application as well as the names and addresses of all the other undertakings that participated in the alleged cartel.
  • A detailed description of the alleged cartel arrangement, including, for instance: (i) its aims, activities and functioning; (ii) the product or service concerned and the market structure for that product or service (section 2.2. paragraph (21) of the Communication on the Leniency Programme); and (iii) the geographic scope, the duration and the nature of the alleged cartel.
  • The names, positions, office locations and, where necessary, home addresses of all individuals who, to the applicant’s knowledge, are or have been involved in the alleged cartel, including those individuals who have been involved on the applicant’s behalf.
  • A description of the measures adopted to put an end to the participation in the cartel and to ascertain that no evidence has been destroyed prior to the request for immunity.
  • Information on which other competition authorities have been approached or are intended to be approached in relation to the alleged cartel.

Other evidence relating to the alleged cartel that is in possession of the applicant, or available to it at the time of the submission, can also be provided to the CNMC. In particular, any evidence contemporaneous to the infringement may be relevant for the CNMC (section 2.2, paragraph (22) of the Communication).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

5. What are the eligibility requirements after an investigation begins?

Spain

See responses to questions 3 and 4. Article 47(2) of the RDC precludes the CNMC from accepting a request for immunity after it has issued its formal accusations against an undertaking. At that point, only requests for the reduction of the fines proposed can be made.

However, in certain circumstances, and even when the CNMC has already launched an investigation, an undertaking may still obtain full immunity from fines. This will be the case if: (i) no other undertaking has already applied for or been granted immunity; and (ii) the applicant is the first to provide the CNMC with relevant information and evidence.

The eligibility requirements are the same as those applicable to an undertaking applying for immunity before an investigation begins.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

6. Will the applicant have to admit to a violation of law?

Spain

In practice, yes.  

Pursuant to section 3.3, paragraph (44)(5) of the Communication on the Leniency Programme, an immunity request can be rejected if the entity requesting immunity indicates that it did not participate in the cartel. Spanish law departs in this point from the EU leniency programme, which does not expressly require immunity applicants to admit to having infringed EU competition law. 

However, admissions of participation in a cartel can be made as part of the oral submissions (section 2.2, paragraph (21) of the Communication).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

7. Is immunity available to an applicant that admits exchanging commercially sensitive information with a competitor but does not admit entering into an agreement to fix prices or allocate markets?

Spain

As indicated above, the immunity and leniency programme is only available for companies that participate in a “cartel”, which is defined as an horizontal agreement in the Fourth Additional Provision of the SCA.

The Communication on the Leniency Programme extends the practices eligible for immunity and leniency to agreements, concerted practices and “complex and combined” forms of collusion (section 1.2, paragraph (10) of the Communication). While this list of practices may be considered to be broader than the definition initially set by the SCA, the application of the immunity and leniency policy still requires some form of horizontal collusive activity that infringes competition by object. Thus, certain practices, such as the exchange of commercially sensitive information without an anti-competitive object (eg, in the context of a study or report prepared by a trade association) may in and of themselves not qualify as “cartels” subject to the Spanish immunity and leniency policy.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

8. Is immunity available to an applicant that admits entering into a vertical price-fixing agreement if that agreement does not also include horizontal collusion?

Spain

No, immunity is not available to companies that admit entering into a vertical price-fixing agreement.

As indicated above, the immunity and leniency programme is only available for companies that participate in a “cartel”, which is defined in the Fourth Additional Provision of the SCA as a horizontal agreement,  an agreement among competitors. Agreements entered into among companies located at different levels of the production and supply chain and which cannot be qualified as actual or potential competitors do not benefit from the Spanish immunity and leniency programme.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

9. Is immunity available to an applicant that admits entering into an agreement not to solicit or hire another company's employees ("no-poach" agreements)?

Spain

The only precedent in Spain concerning no-poaching agreements was found in the context of a broader cartel, which was revealed as a result of a leniency application (S/0120/08 Transportation). The cartel consisted of several aspects, including an agreement not to hire staff employed by the other members of the cartel. In its decision, the CNMC granted full immunity to the company that revealed the existence of the cartel, and for all the aspects of the cartel (including the no-poaching agreement). 

Notwithstanding this, it may be debatable whether a no-poaching agreement among competitors amounts to a “cartel” as defined by the Fourth Additional Provision of the SCA, insofar as this definition requires that the object of the “cartel” be the setting of prices or shares of production or sales, the sharing of markets, including fraud in submitting bids, and the restriction of imports and exports.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

10. Are ringleaders or initiators of the conduct eligible?

Spain

Ringleaders or initiators of a cartel are not in and of themselves excluded from the Spanish leniency programme.

However, the SCA does establish as a condition to benefit from immunity that applicants not have adopted “measures to oblige other undertakings to participate in the infringement” (article 65(2)(d) of the SCA). 

The CNMC has clarified that it does not interpret this condition to be breached when applicants resort to the mechanisms established by the cartel for its execution, such as the issuance of invitations to form part of such cartel, the participation in the adoption or execution of coordinated or concerted practices, or the fulfilment of leadership or coordination roles (section 3.2, paragraph (40) of the Communication on the Leniency Programme). 

By contrast, the CNMC will consider this condition to be breached when it identifies coercive measures, threats of such economic pressure capable of excluding other undertakings from the market, boycotts or refusals to supply (section 3.2, paragraph (41) of the Communication).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

11. When must the applicant terminate its involvement in the conduct?

Spain

Pursuant to the SCA, the applicant needs to terminate, or declare its intention to terminate, its participation in the infringement immediately after the submission of its application. However, complete and abrupt withdrawal without explanation can compromise the effectiveness of a potential inspection by the CNMC. For this reason, it is possible that the CNMC requires an undertaking to continue participating in a cartel, so the integrity of the inspections can be preserved (article 65(2)(b) of the SCA). In these cases, the behaviour is formally presumed to have been terminated from the moment that the application for full immunity was made (section 5, paragraph (68) of the Communication on the Leniency Programme).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

12. What constitutes termination of the conduct?

Spain

As indicated in response to question 11, an applicant must generally refrain from participating further in the infringing conduct to benefit from leniency or immunity (see article 65(2)(b) of the SCA).

As part of its application for leniency or immunity, the applicant will need to set out and explain in detail the steps it took that prove that it stopped its participation in the cartel. The applicant will also need to provide the CNMC with the relevant dates (section 5, paragraph (68) of the Communication on the Leniency Programme). 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

13. Will the applicant be required to make restitution to victims?

Spain

No. The SCA leniency programme does not require an immunity applicant to make restitution to the victims of a cartel.

Article 72(1) of the SCA indicates that any citizen or business that has suffered harm as a result of breaches of “competition law” is entitled to “full compensation” (including from loss of profit plus the payment of interests, see article 72(3) of the SCA) from the infringers before the “ordinary civil courts” (in practice, the Juzgados de lo Mercantil).

Similarly, the European Court of Justice (the ECJ) awards a right to those having suffered a harm due to a breach of article 101 of the TFEU (see Case C-453/99 Courage and Crehan [2001] ECR 2001 p. I-6297). While such victims may commence civil proceedings before member state national courts, the exact rules on standing, procedure and calculation of damages vary among the different member states. The European Commission believes that this may, in certain circumstances, act as a disincentive to victims wishing to bring claims. As such, Directive 2014/104/EU on antitrust damages actions for breaches of competition law was enacted on 26 November 2014 (the “Damages Directive”). The Damages Directive intends to “avoid the divergence of applicable [damages] rules, which could jeopardise the proper functioning of the internal market”. Spain incorporated the Damages Directive into Spanish law by Royal Decree-Law 9/2017, of 26 May, and it entered into force on 27 May 2017.

Pursuant to article 73(1) of the SCA and the modifications introduced by article 11 of the Damages Directive, “the undertakings or associations of undertakings that have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by the infringement of competition law”. To minimise the impact of article 73(1) of the SCA on the leniency programme, article 73(5) of the SCA provides that an immunity recipient is jointly and severally liable only for the harm suffered by its own direct and indirect customers (ie, it will not be liable for the harm caused to the customers of the other cartel members). An exception to this rule applies where victims cannot obtain full compensation from the other undertakings involved in the cartel.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

14. Can more than one applicant qualify for immunity?

Spain

No. There can only be one successful immunity applicant per cartel (article 65(1) of the SCA).

Accordingly, if the CNMC has already granted conditional immunity to an applicant pre-inspection, no subsequent applicant can obtain immunity. This includes situations where an immunity applicant has been disqualified based on the failure to meet the criteria to benefit from immunity, in particular article 65(2)(d) of the SCA – in such cases, no subsequent applicant will be the “first” undertaking to provide evidence of an infringement or capable of prompting an inspection, in the terms of article 65(1) of the SCA, and no undertaking will be able to benefit from immunity (section 3.2, paragraph (42) of the Communication on the Leniency Programme). 

However, a subsequent applicant may still be eligible for a reduction of up to 50 per cent of the fine. The ranges for the reduction of fines imposed also depend on the timing of the application: (i) 30 to 50 per cent for the second applicant revealing information; (ii) 20 to 30 per cent for the third applicant; and (iii) up to 20 per cent for the remaining members of the cartel who provide the CNMC with some relevant information.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

15. Can an applicant qualify if one of its employees reports the conduct to the authority first?

Spain

No. 

Individuals can individually apply for immunity and leniency pursuant to the SCA’s leniency programme (articles 65 and 66 of the SCA; section 1.2, paragraph (9); and section 2.1, paragraphs (14) and (15) of the Communication on the Leniency Programme).

If an employee reports a cartel to the CNMC in his or her individual capacity as “informant” or “whistle-blower”, the entity that employs that individual does not benefit from such reporting.  In addition, if the individual has provided sufficient information to the CNMC to enable it to grant immunity to him or her, immunity will no longer be available to other undertakings, including the individual’s employer.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

16. Does the afforded protection extend to any non-antitrust infringements?

Spain

No.  Non-antitrust infringements are beyond the scope of the SCA’s leniency programme.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Immunity application and marker process

17. What confidentiality assurances are given to the first applicant to report?

Spain

The Spanish legislation provides a relatively wide access to file by interested parties, including third parties (articles 13(d) and article 53(a) of the Law 39/2015, of 1 October, of the Common Administrative Procedure and Law 19/2013, of 9 December, on Transparency, Access to Public Information and Good Governance). 

However, pursuant to article 51(1) of the RDC, the CNMC will treat requests for immunity or leniency as confidential and will create a separate confidential file with the data and documents considered confidential, including the identity of the persons or entities seeking leniency or immunity.

Thus, other interested entities, including other cartel members, would only have access to those data, documents and supporting evidence “necessary to reply to the accusation” (article 51(2) of the RDC; and section 6, paragraph (72) of the Communication on the Leniency Programme). However, those interested parties will not be able to make copies of those declarations (article 51(3) of the RDC), and the publicly available version of the final decision will not contain references to the declarations made by the applicants (section 6, paragraph (73) of the Communication).

Until the CNMC issues its statement of objections (SO), the applicant’s identity will not be disclosed to any third party – other than to EU member state competition authorities – without first obtaining the applicant’s permission. Even when an undertaking seeks immunity and is informed that it is no longer available, the CNMC will not disclose to that undertaking the identity of the first applicant before the SO is issued.

Once the CNMC has published its SO, the applicant’s identity will become known to the other addressees of the SO (ie, the other cartel members). The applicant’s identity will become publicly known when the CNMC issues the final infringement decision.

As regards the possibility of subsequent disclosure orders in follow-on litigation, in its judgment of 14 June 2011, in case C-360/09, Pfleiderer AG v Bundeskartellamt, the EU Court of Justice held that national courts should carry out a case-by-case assessment of whether access to leniency documents should be required in damages actions. In Spain, the transposition of the Damages Directive excludes the statements made by leniency and immunity applicants (article 283 bis of the Law of Civil Procedure), although supporting evidence in the CNMC’s file is not protected from disclosure.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

18. Does the authority publish guidance regarding the application of the programme?

Spain

Yes.

The CNMC has published Spanish and English versions of the Communication on the Leniency Programme (available  here: https://www.cnmc.es/ambitos-de-actuacion/competencia/programa-de-clemencia).

In addition, section 1.1, paragraph (4) of the Communication expressly indicates that Spain’s leniency programme is “inspired” by (i) the EU Leniency Programme “set out in the [EU 2006] Leniency Notice” (available at: http://ec.europa.eu/competition/cartels/legislation/leniency_legislation.html); and (ii) the 2012 European Competition Network Model Leniency Programme (available at: http://ec.europa.eu/competition/ecn/mlp_revised_2012_en.pdf).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

19. Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

Spain

As noted in the response to question 18, Spain’s leniency programme is “inspired” by the EU Leniency Programme and by the 2012 European Competition Network Model Leniency Programme (section 1.1, paragraph (4) of the Communication on the Leniency Programme). Moreover, the Communication is to be interpreted in the light of national and European “practice and jurisprudence” (section 1.1, paragraph (5) of the Communication).

However, the EU does not provide a one-stop-shop for leniency. Those members of a cartel with effects on trade between member states have to apply to any competition authority in the EU that might have standing in and be competent to investigate any particular case based on article 101 of the TFEU or on any other applicable provisions. The European Competition Network Model Leniency Programme sets out the treatment all applicants can expect in any ECN jurisdiction and, in doing so, seeks to minimise the burden and bureaucracy associated with multiple applications by introducing a “summary leniency application”.

In its judgment of 20 January 2016, in case C-428/14 DHL Express (Italy) and DHL Global Forwarding (Italy), the ECJ held that:

(i) the instruments adopted in the context of the European Competition Network, such as the Model Leniency Programme, are not binding on the National Competition Authorities of the EU member states (the NCAs); and

(ii) there is no legal link between the application for immunity that an undertaking submits to the CNMC and the summary application submitted to an NCA in respect of the same cartel.

As a result:

(i) the NCA is not required to assess the summary application in light of the application for immunity or contact the European Commission to obtain information on the purpose and results of the leniency procedure carried out at the European level; and

(ii) EU law does not preclude NCAs from accepting a summary application for immunity from an undertaking that had not submitted an application for full immunity to the European Commission, but rather an application for reduction of the fine (see Case C-428/14 DHL Express (Italy) and DHL Global Forwarding (Italy) [2016] not yet reported). In practice, this might lead to scenarios where the first entity to go in with an NCA might reap full immunity, even if it had not been the first one to contact the CNMC, if the case ends up being investigated at the national level.

Pursuant to article 48 of the RDC, if an entity intends to submit a request for immunity to the European Commission, it can keep its place as first-in in Spain by submitting an “abbreviated request for exemption” indicating:

  • the name and contact details of all the entities participating in the cartel;  
  • the products and territories affected by the cartel;  
  • the estimate duration and nature of the cartel;  
  • the member states in whose territory one can find evidence in relation to the cartel; and  
  • information in relation to other leniency applications the immunity applicant intends to make.

If the CNMC ends up having jurisdiction over the cartel, the applicant has 10 days to complete a full immunity application (article 48(5) of the RDC and section 2.5, paragraph (35) of the Communication on the Leniency Programme).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

20. What is the initial process for making an application?

Spain

Individuals or undertakings seeking immunity must contact the CNMC’s Investigations Directorate directly or through an authorised legal representative, and submit a formal application for leniency. 

Before submitting a formal application, the applicant may first seek assistance from a CNMC official by calling a dedicated telephone number (+34 91 787 68 44). At this point, the Directorate will inform the applicant if immunity is not available (section 2.1, paragraph (18) of the Communication on the Leniency Programme). Upon request of the immunity applicant, the Directorate can also issue a receipt containing the time of the submission of the immunity application (section 2.2, paragraph (24) of the Communication).

An immunity applicant can indicate in its request that, if immunity is no longer available, the request should be considered as a request for a reduction of fines (section 2.3, paragraph (30) of the Communication). 

At the time of the submission of the application, the undertaking or individual applying for immunity can request the Investigations Directorate to issue a receipt certifying that the application has been filed. As set out in section 2.2, paragraph (24) of the Communication, the receipt will identify the applicant and contain the Directorate’s certification of the date and time the leniency application was entered in the CNMC register and its content.

In no event will the issuance of this receipt imply the grant of the conditional exemption or the requested reduction of the fine – it would only serve to certify the date and time when the leniency applicant entered the register (section 2.2, paragraph (24) of the Communication).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

21. What information is required to secure a marker?

Spain

The Spanish leniency programme does not provide a system of markers as such. However, pursuant to article 46(5) of the RDC, and section 2.3, paragraph (29) of the Communication on the Leniency Programme, the CNMC may grant, upon request of the immunity applicant, an extension, protecting an immunity applicant’s place in the queue for a period to be specified on a case-by-case basis, to allow time for the gathering of the necessary information and evidence.

The applicant must (i) make a reasoned request to that effect; and (ii) provide the CNMC with information, including:

  • A detailed description of the alleged cartel arrangement, including, for instance, its aims, activities and functioning; the product or service concerned; the geographic scope; and the duration and nature of the alleged cartel.  
  • The name and address of the legal entity submitting the immunity application as well as the names and addresses of all the other undertakings that participate(d) in the alleged cartel.
  • The names, positions, office locations and, where necessary, home addresses of all individuals who, to the applicant’s knowledge, are or have been involved in the alleged cartel, including those individuals who have been involved on the applicant’s behalf.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

22. How much time will an applicant have to perfect its marker?

Spain

As noted in the reply to question 21, the SCA leniency programme provides for extensions, rather than “markers”. Where an extension is granted, the CNMC will determine the period within which the immunity application must be completed on a case-by-case basis. Extension periods tend to be short, usually lasting only 10 working days.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

23. Can the deadline for perfecting the marker be extended?

Spain

Yes. 

As noted in the replies to questions 21 and 22, the SCA leniency programme provides for extensions, rather than “markers”. An undertaking may request the CNMC to extend the deadline of the extension. Such a request should be submitted before the expiration of the extension and include sufficient details to enable the CNMC to make an informed decision. The CNMC has discretion to accept or reject the request. Extensions are usually extended for an additional period of five working days, up to a total of 15 working days. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

24. What is required to perfect the marker?

Spain

The extension (ie, the equivalent of the “marker” in Spain) will be satisfied or perfected when the applicant submits the information and evidence required for a formal immunity application within the given deadline (or extended deadline) (section 2.3, paragraph (29), and article 46(5) of the RDC).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

25. Can the scope of the marker be expanded if additional information is discovered by the applicant?

Spain

The conditional immunity granted by the CNMC will cover the alleged cartel that has been reported to it (which entails a delineation of the affected products, geographical coverage, participants and duration). If an applicant discovers evidence of additional wrongdoing that relates to the same cartel, it may apply to the CNMC to extend the scope of its initial application. The CNMC may extend the scope of the immunity accordingly. 

If the immunity applicant discovers information regarding a separate cartel, it can (but is not obliged, as a matter of law, to) make a separate immunity application covering that cartel. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Immunity cooperation obligations

26. Can an applicant lose its marker if a second applicant comes forward with better information?

Spain

The CNMC will not consider other immunity applications before it has taken a position on an existing application in relation to the same alleged infringement (article 47(3) of the RDC). Whether the immunity applicant receives immunity will therefore be assessed on the basis of whether it has met the conditions under the SCA leniency programme before the expiration of the deadline for perfection of the marker, not on the basis of a comparison with another application (section 2.3, paragraph (29) of the Communication on the Leniency Programme).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

27. What if the applicant’s investigation reveals that no violation exists?

Spain

An application for immunity under the SCA leniency programme is voluntary. If the immunity applicant considers, further to its own investigative steps, that no violation has taken place, the applicant can choose to withdraw its application. 

However, this does not necessarily mean that the CNMC will not continue to investigate an alleged infringement that has been reported. In the event that the applicant withdraws the evidence it has submitted for the purpose of its application, the CNMC may use its own powers of investigation to obtain the information. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

28. What if the authority decides not to investigate?

Spain

The CNMC cannot decide not to investigate an infringement when there are rational indicia of an infringement of the SCA. If there are indicia of an infringement, the CNMC is under an obligation to investigate. A decision by the CNMC not to investigate can be challenged before the Spanish courts. The Spanish courts can reject the appeal, inter alia, if there are no rational indicia of an infringement.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

29. What is the applicant required to produce?

Spain

In addition to providing the CNMC with a formal request and the relevant evidence (see question 5), an immunity applicant has a continuing duty to:

a       cooperate “fully, on a continuous basis and expeditiously” throughout the investigation (article 65(2)(a) of the SCA, section 1.2, paragraph (7) and section 5 (66) of the Communication on the Leniency Programme). Pursuant to article 52 of the RDC, the duty to cooperate includes providing the CNMC promptly with:

  • all relevant information and evidence relating to the alleged cartel that comes into its possession or is available to it, including any new information that might become available as the investigation progresses (section 2.2, paragraph (26) of the Communication);
  • prompt answers to any request from the CNMC that may contribute to the establishment of the facts (including the translation of documents that are not in Spanish; section 5, paragraph (66)(e) of the Communication); and
  • access to current (and, “if applicable”, former) employees and directors whom the CNMC may wish to interview.

b      terminate its participation in the infringement (article 65(2)(b) of the SCA; see also questions 11 and 12);

c      not to have destroyed, modified or hidden evidence related to the immunity application; and not have revealed to third parties “different from the European Commission or other competition authorities” its intention to apply for leniency and the content of its application (article 65(2)(c) of the SCA) before the notification of the SO. However, section 5, paragraph (66)(e) of the Communication enables the CNMC to allow the immunity applicant to authorise the disclosure of the leniency application to those people or entities where it is justified to do so, provided the recipients undertake to keep that information confidential. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

30. Will the applicant be required to make a written confession?

Spain

Although this is not a formal legal requirement under the SCA, the applicant will, in practice, be required to admit its participation in the cartel. However, applicants may not need to make this acknowledgment in writing. As noted above in question 10, the CNMC may accept oral corporate statements to this effect (section 2.2, paragraph (21) of the Communication on the Leniency Programme). 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

31. Can third parties obtain access to the materials provided by the applicant?

Spain

See response to question 17 regarding the confidentiality protections conferred by Spanish legislation to statements and documentation provided by leniency and immunity applicants. 

As regards the supporting evidence, access to these materials will also be provided to the other cartel members during the access to file process after an SO has been issued, to the extent that access to this evidence is necessary for them to reply to the SO (section 6, paragraph (73) of the Communication on the Leniency Programme). 

As regards the potential for subsequent disclosure orders in follow-on litigation, it is important to note that the Damages Directive and its transposition into Spanish law (article 283 bis(i) of the Act 1/2000, of 7 January, on Civil Procedure, the LEC) does not exclude the disclosure of the supporting evidence in the CNMC’s file (unlike the corporate statements of applicants, which are protected from disclosure; see article 283 bis(i)(6) of the LEC).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Granting immunity

32. Will the applicant lose its protection if one or more of its employees refuses to cooperate?

Spain

No, as long as the applicant has used its best efforts for its employees to cooperate.

The requirement of full and continuous cooperation set out in article 65(2)(a) of the SCA and section 5, paragraph (66) of the Communication on the Leniency Policy requires the immunity applicant to make current (and, “if applicable”, former) employees and directors available for interviews with the CNMC and to not destroy, falsify or conceal relevant information or evidence. The undertaking must use its best efforts to ensure that its employees do cooperate with the CNMC (for instance, by giving employees individual assurances that cooperation will not lead to disciplinary action being taken against them). If the employees do not comply with the duty of full and complete cooperation, the CNMC may withdraw the immunity in relation to those employees.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

33. Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

Spain

See response to question 32. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

34. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Spain

It is a general principle of Spanish law that an undertaking cannot be required to provide the CNMC with communications that are protected by legal professional privilege (LPP). 

However, EU courts have ruled that only communications between an undertaking and external counsel benefit from LPP. Therefore, communications with in-house legal counsel do not benefit from privilege from inspection in the context of antitrust investigations (Case 155/79, AM&S Europe Ltd [1982] and Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd [2010]). That said, the courts have held that communications between an in-house lawyer and the undertaking that relay the content or nature of privileged communications with external counsel will be privileged (an extension of LPP), although file notes prepared by employees or in-house counsel will not be protected (Case T-30/89, Hilti [1990]). 

The CNMC has followed European law in relation to the exclusion of inside counsel communications from LPP protection. This position has been confirmed by the Spanish courts. However, the CNMC tends not to request the production of communications between an investigated entity and its in-house counsel.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Individual immunity or leniency

35. Does the existence of an effective compliance programme affect whether an applicant meets the eligibility requirements?

Spain

No, the existence of an effective compliance programme does not affect whether an applicant meets the eligibility requirements. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

36. Does the authority consider the existence of an effective compliance programme at the time it becomes aware of an infringement when determining the leniency benefits granted?

Spain

No, the existence of an effective compliance programme is not a factor taken into consideration by the CNMC when determining the leniency benefits that may be granted. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

37. Will the applicant be required to implement or enhance a compliance programme to obtain leniency benefits?

Spain

In principle, the implementation or enhancement of a compliance programme will not be required to obtain leniency or immunity benefits. However, with some exceptions, the Communication on the Leniency Programme requires applicants not to continue or retake contacts with competitors for anti-competitive purposes (section 5, paragraph (69) of the Communication). This may in practice compel companies to put in place strict compliance programmes in order to ensure that this condition is fulfilled and not violated. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

38. How does the authority announce its promise not to charge or sanction?

Spain

The CNMC grants conditional immunity, which is formally notified to the applicant (article 47(1) RDC). The decision is addressed to the applicant only and is not published.

At the end of the administrative process, the CNMC will confirm the decision to grant conditional immunity if all of the conditions under the SCA remain fulfilled at the time that the CNMC adopts its infringement decision imposing fines (article 47(4) RDC). A non-confidential version of the infringement decision is published on the CNMC’s website (article 37(1) Act 3/2013).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

39. Does the authority put its commitment in writing?

Spain

See question 38.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

40. Who is given access to the document?

Spain

See question 38.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

41. Does the authority publish a model letter for conferring immunity?

Spain

No.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

42. Is there an individual immunity programme?

Spain

Yes.

As indicated in question 3, article 63(2) of the SCA empowers the CNMC to impose fines of up to €60,000 on those individuals who are part of the management bodies, or are the legal representatives, of the entities having participated in the unlawful conduct. 

Pursuant to article 65(1) of the SCA, and section 2.1, paragraphs (14) and (15) of the Communication on the Leniency Programme, individuals who can be held responsible for cartel conduct under the SCA can submit immunity requests of their own.

Pursuant to article 65(3) of the SCA, any immunity granted under the SCA to a corporation or group of undertakings (an “undertaking” in EU/Spanish competition law terms) is automatically extended, if the entity seeking immunity so requests it, to the individuals having responsibility for the cartel conduct and affiliated with the entity seeking immunity, “provided they have collaborated with the National Markets and Competition Commission” (see also section 1.3, paragraph (12) of the Communication).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

43. What is the process for applying?

Spain

See responses above in relation to corporate immunity.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

44. What are the criteria for qualifying?

Spain

See responses above in relation to corporate immunity.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Revocation of immunity

45. On what basis can corporate immunity be revoked?

Spain

As a preliminary point, it should be noted that full leniency or immunity is not formally granted until it has been confirmed at the end of the administrative procedure through an infringement decision.

If, at the end of the administrative procedure, the applicant has not complied with the different duties contained in article 65(2) of the SCA, the CNMC may decide not to grant final immunity (articles 47(4) of the RDC and section 3.4, paragraph (59) of the Communication on the Leniency Programme). Thus, while, technically, the CNMC’s decision is one not to grant final immunity or leniency, in practical terms this decision amounts to a “withdrawal” or “revocation” of conditional immunity or leniency.

In several cases in which the information provided by the undertaking had added value, the CNMC nevertheless withheld the benefits of the leniency programme from undertakings on the basis that it considered that they had not complied with their collaboration obligations under the programme. In such cases, the CNMC will grant the investigated undertakings the possibility of replying to the accusations against them (article 51(4) SCA, see further CNMC decisions of 2 March 2011 in Case S/0086/08 Professional Hairdressing, and of 23 February 2011 in Case S/244/10 Balearic Ship Operators).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

46. When can it be revoked?

Spain

See response to question 45. If, during the investigation, it becomes apparent that immunity is not available or that the applicant has not met the conditions to benefit from immunity, the CNMC will inform the applicant and the applicant may withdraw the evidence it has submitted. The DI will indicate in the SO whether, in its opinion, the immunity applicant is complying with its duties to cooperate under article 65 of the SCA (section 3.4, paragraph (51) of the Communication on the Leniency Programme).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

47. What notice is required to revoke?

Spain

See questions 45 and 46 as regards conditional immunity. At the end of the administrative procedure, the CNMC’s final infringement decision will set out the CNMC’s view and conclusions as to whether to grant or refuse formal immunity.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

48. Can the applicant file a judicial challenge to a decision to revoke?

Spain

Yes, against a final decision not granting the immunity requested (article 24 of the Spanish Constitution). 

The Spanish High Court has jurisdiction to review the legality of all CNMC final decisions, including the final infringement decision in which the CNMC will, if it considers it appropriate, decide not to grant immunity and instead impose a fine on the applicant undertaking. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Reduction in sanctions

49. Does the leniency programme allow for reductions in sanctions?

Spain

Yes. Undertakings that do not meet the conditions for full immunity may still be eligible to benefit from a partial reduction in any fine that would otherwise have been imposed on them provided that they:

  • provide evidence representing “significant added value” to that already in the CNMC’s possession; and  
  • comply with the cooperation conditions under articles 65(2)(a), (b) and (c) of the SCA (ie, the same as is the case for immunity applicants, with the exception that fine reductions are available for entities that coerced other entities to participate in the infringements, a condition required to benefit from immunity as per article 65(2)(d) of the SCA).

Article 50(3) of the SCA allows the CNMC to accept requests for reduction in fines after the issuance of an SO. However, pursuant to section 2.4, paragraph (33) of the Communication on the Leniency Programme, the CNMC rarely takes into account requests for fine reductions after the end of the investigative phase.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

50. What is the process for seeking a reduction in sanctions?

Spain

The applicant must make a formal application to the CNMC, together with sufficient evidence of the alleged cartel that represents “significant added value” with respect to the evidence that the CNMC already has (article 66(1) of the SCA). 

At the applicant’s request, the CNMC will provide an acknowledgment of receipt confirming the date and, where appropriate, the time of each submission.

The CNMC will set out in the SO whether it intends to apply a fine reduction and will indicate in which band the reduction falls.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

51. Is there a marker process similar to immunity applications?

Spain

No.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

52. Are the reductions in sanctions fixed or discretionary?

Spain

The reduction in sanctions is discretionary within certain “bands” that the SCA establishes (article 66(2) of the SCA, see question 53).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

53. How are the reductions in sanctions calculated?

Spain

Once the CNMC has determined that the applicant satisfies the conditions for a reduction in its fine, the level of the reduction will be calculated by reference to three bands (which often turn on the point in the process at which the applicant provides the evidence):

  • reductions of 30–50 per cent for the first applicant company to provide significant added value;
  • reductions of 20–30 per cent for the second applicant company to provide significant added value; and
  • reductions of up to 20 per cent for any subsequent applicant company that provides significant added value (article 66(2) of the SCA and section 4, paragraph (61) of the Communication on the Leniency Programme).

The band reduction that applies depends on the order of arrival of the requests for leniency at the Registrar of the CNMC (article 2(4)(33) and section 4, paragraph (55) of the Communication).

The band reductions set out above mirror those applicable under the EU Leniency Programme.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

54. Are there sentencing guidelines?

Spain

In 2009, the CNMC issued Guidelines on the method of setting fines for anticompetitive practices. However, on 29 January 2015, the Spanish Supreme Court issued a ruling declaring the Guidelines contrary to Spanish Constitutional law (see Judgment of 29 January 2015, appeal number 2872/2015, BCN Aduanas y Transportes SA).

According to the Spanish Supreme Court, the final amount of the fine should be established within the range up to 10 per cent of the total annual turnover of the undertaking concerned, taking into account the criteria mentioned in article 64(1) of the SCA: (i) the size and characteristics of the market affected by the infringement; (ii) the market shares of the undertakings; (iii) the scope of the infringement; (iv) the duration of the infringement; (v) the effect of the infringement on the rights and legitimate interests of consumers or on other economic operators; (vi) the illicit benefits obtained from the infringement; and (vii) aggravating and mitigating factors in relation to each undertaking.

Based on this set of criteria, the CNMC has adopted in its decisions a new methodology for the calculation of the fines. It is based on two pillars: (i) the infringement’s level of unlawfulness, which will determine the percentage of the fine within the limits of the fining scale (up to 10 per cent); and (ii) the individualisation of the fines for each of the undertakings.

All in all, the application of this methodology gave rise to a high degree of legal uncertainty, as there were no guidelines from the CNMC available. However, in October 2018, the CNMC published provisional guidelines on the methodology for the calculation of the fines regarding infringements of articles 1, 2 and 3 of the SCA and articles 101 and 102 of the TFEU.

These provisional guidelines are only available in Spanish, and can be found here:

https://www.cnmc.es/sites/default/files/editor_contenidos/Competencia/Normativas_guias/Indicaciones%20provisionales%20de%20multas%20de%20competencia%20-%20CNMC.pdf.

.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

Cooperation obligations for sentencing reductions

55. If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

Spain

Where the undertaking is the first applicant to submit “compelling evidence” that the CNMC later relies upon, the CNMC will not take the additional information into account when setting the fine to be imposed upon the undertaking that provided the information (section 4, paragraph (62) of the Communication on the Leniency Programme). 

See further question 59 in relation to Leniency Plus.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

56. Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

Spain

See response to question 53.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

57. Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

Spain

As a general matter, no. However, if the immunity applicant’s conditional immunity is withdrawn, the CNMC may grant conditional immunity to the first non-immunity applicant, particularly if there have not yet been any on-the-spot inspections. 

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

58. Does the competition authority publish guidance regarding sentencing reductions?

Spain

The Communication on the Leniency Programme (Spanish and English versions available here) contains useful guidance in relation to fine reductions under the SCA’s leniency programme. 

See response to question 54 in relation to general guidance on the general methodology of setting fines under the SCA.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

59. Does the authority provide for "Leniency Plus" benefits?

Spain

No. 

The SCA does not provide for “Leniency Plus” as provided under, for example, US law.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

60. How is the Leniency Plus discount calculated?

Spain

Not applicable (see response to question 59).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

61. Are the cooperation obligations similar to those for immunity applicants?

Spain

Undertakings that apply for a reduction in fines must meet the same cumulative and continuing cooperation conditions as immunity applicants (ie, the conditions set out in article 65(2) of the SCA with the exception of not having coerced another undertaking to participate in an infringement, similarly to EU law, coercing entities are eligible for fine reductions but not for immunity, see response to question 10).

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

62. Will the applicant be required to make a written confession?

Spain

No. See questions 6 and 30.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

63. Can third parties obtain access to the materials provided by the applicant?

Spain

The position is the same as for materials provided by the immunity applicant. See question 17.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

64. Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

Spain

The requirements for cooperation are the same as for immunity applicants. See question 32.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

65. Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

Spain

The effect of obstructive conduct by an employee is the same as for immunity applicants. See response to question 33.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

66. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Spain

The position is the same as for immunity applicants. See response to question 34.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

67. Can an applicant challenge the amount of the reduction of sanctions?

Spain

Yes. The amount of the reduction will be set out in the CNMC’s infringement decision, which can be challenged before the courts (article 24 of the Spanish Constitution). 

* This text does not represent the view of Gibson, Dunn & Crutcher LLP or of its clients.

Answer contributed by Alejandro Guerrero Perez and Pilar Perez-D’Ocon

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