1. THE STATE ACQUISITION OF BANKING ASSETS
FROM THE RESTRUCTURING OF CREDIT INSTITUTIONS WILL NOT BE SUBJECT TO
spanish
MERGER CONTROL Rules
Royal Decree-Law 3/2013, which revises the system of court fees and
legal aid, was adopted on 23 February 2013. The fourth additional
provision of the Royal Decree-Law introduces a revision to Law 9/2012 of 4 November
2012 on restructuring and liquidation of credit institutions, under
which the acquisition of assets by the Company for the Management of
Assets from the Bank Restructuring (“SAREB”, Sociedad de
Gestión de Activos Procedentes de la Reestructuración Bancaria) will
not be subject to the merger control regime set out in Law 15/2007 of 3
July 2007 on the defence of competition (“LDC”, Ley de Defensa de la
Competencia). This means that it will not be necessary to notify the
Spanish Competition Commission (“CNC”, Comisión Nacional de la
Competencia) of any transaction which is subject to Law 9/2012,
regardless of whether or not it meets the compulsory notification
thresholds.
However, this measure, aimed at speeding up the bank restructuring,
will not remove the obligation to notify the European Commission if the
thresholds set out in Article 1 of the EC Merger Regulation are met.
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2. THE HIGH COURT ANNULS CNC RESOLUTION IN THE
CONSTRUCTION INSURANCE INDUSTRY
The Spanish High Court has annulled the CNC resolution of 12 November
2009 in Case S/0037/08, Construction Insurance Companies. In that
case, the CNC fined six insurance companies for their alleged
participation in a cartel to fix minimum prices for premiums for
building damage in construction insurance policies. The total fine
amounted to EUR 120.72 million; one of the highest ever imposed by the
CNC.
In the judgments handed down so far, the High Court concluded that
there had not been a prohibited agreement between the insurance and
reinsurance companies but, rather, a lawful cooperation between them,
which was limited in scope to the purely objective cost of the risk
premium and not to the commercial premium itself. The price fixing which
was censured by the CNC amounted to the companies evaluating the cost of
risk premiums. They were not discussing the discount rate, the
additional charges passed on to clients or the commissions paid by
reinsurers to insurers, all of which would amount to price fixing, since
these factors determine the commercial premium rate. Statistical surveys
carried out between reinsurance companies so that they can adjust risk
premiums to an appropriate level, in order to avoid their own
insolvency, are expressly provided for in the relevant sectoral
regulation (Article 25.3 of Royal Legislative Decree 6/2004 of 29
October 2004, approving the consolidated text of the law on planning and
supervision of private insurance).
In considering whether an infringement took place, the High Court
also took into account the conduct of the parties at the time, and, in
particular, the fact that the commercial premiums offered by the
companies during the period under consideration were significantly
different from each other and varied over a substantial range.
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3. THE CNC FINES TWO TRADE ASSOCIATIONS FOR
RECOMMENDING PRICES
In a resolution of 20 February 2013, the CNC imposed fines of EUR
50,000 and EUR 30,000 on two transport associations, the Spanish
Confederation of Goods Transportation (“CEMT”, Confederación
Española de Transporte de Mercancías) and the Catalan Transport
Federation of Barcelona (“TRANSCALIT”, Federación Catalana de
Transportes de Barcelona), respectively, for an infringement of
Article 1 of the LDC and Article 101 of the Treaty on the Functioning of
the European Union (“TFEU”).
The infringements consisted of recommending, through information
circulars, that the increase in petrol prices be reflected in the prices
of transportation services in identical proportions. This measure was
taken on the basis that the CNC Investigation Directorate was already
aware of the existence of the associations’ circulars through another
investigation.
The parties’ defence rested on the fact that their conduct was caught
under a law allowing contracts to contain price revision clauses taking
into account the rise in the price of petrol, with the agreement of both
contracting parties. The parties also referred to case-law from the
European Court of Justice on mitigating circumstances stemming from the
existence of national regulations which encourage or make it easier for
companies to engage in autonomous anticompetitive conduct.
The CNC did not accept the parties’ argument that there was a
difference between merely recommending the inclusion of price revision
clauses in contracts and producing and circulating recommendations for
an increase in the final price of a service offered by all hauling
companies. The CNC considered that the conduct amounted to a restriction
by object, given the content of the recommendation, the sender and the
extent of its circulation, although the effects of the recommendation
had not been proven.
Finally, the CNC Council concluded that there had been an
infringement of Article 101 of the Treaty on the Functioning of the
European Union (“TFEU”), despite the draft proposal for the decision not
containing any charges relating to the European law and considered that
this omission was not a legal reclassification but a mere error.
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4. THE CNC IMPOSES FINES FOR NON-COMPLIANCE WITH
COMMITMENTS IMPOSED IN RESOLUTIONS
In the last few months, the CNC has adopted two resolutions making
clear its firm commitment to monitoring compliance with merger
decissions.
In Case SNC/0025/12, the CNC imposed a fine of EUR 819,000 on the parties for
breach of commitments. The two merging parties had not complied with
their obligation to keep the merged entity’s management and payment
systems separate, in order to avoid any risk of information exchange
through the newly created platform. Meanwhile, in Case SNC/0024/12, the
CNC imposed a fine of EUR 15.6 million on the acquiring party in a
merger between two television service providers for improper compliance
with the conditions attached to the merger approval.
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1. THE STATE ACQUISITION OF BANKING ASSETS
FROM THE RESTRUCTURING OF CREDIT INSTITUTIONS WILL NOT BE SUBJECT TO
spanish
MERGER CONTROL Rule