THE COUNCIL OF MINISTERS APPROVES THE BASIC STATUTE OF THE NATIONAL
MARKETS AND COMPETITION COMMISSION
Following the creation of the National Markets and Competition
Commission (“NMCC”), the Council of Ministers has
approved the Basic Statute of the new super-regulator. This is another
step in the structural reform, bringing together various regulatory and
supervisory bodies into a single institution.
The Statute regulates the internal organisation of the NMCC. Its main
aim is to ensure that the institution’s performance meets the principles
of efficacy, efficiency, rationalisation, objectivity and transparency.
To achieve this, the tasks and responsibilities of the internal units
have been clearly defined and new ways of coordination and cooperation
have been introduced. Moreover, a strict control system has been
established over hiring procedures, budget preparation and
implementation and asset management.
The NMCC will have its headquarters in Madrid and the
Telecommunications and Audiovisual Sector Directorate will be located in
Barcelona.
After the approval of the Statute, the Congress decided who would be
the members of the first Council of the NMCC. The Council will be
chaired by Mr. José María Marín Quemada, who will also chair the
Competition Chamber. The vice-president of the Council and the president
of the Regulatory Supervision Chamber will be Ms. María Fernández Pérez.
Eight other members, with a technical profile, will complete the Council
and form the two Chambers.
Following these appointments, the most optimistic forecasts suggest
that the NMCC could start operating in October. Only the constitution of
the Council and the approval of its internal rules of procedure are
pending.
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THE SPANISH COMPETITION AUTHORITY APPROVES the boyacá/ redprensa/
rde merger SUBJECT TO CERTAIN COMMITMENTS
The Spanish National Competition Commission (“NCC”)
has approved in second phase, subject to remedies, the acquisition by
Distribuciones Generales Boyacá, S.L. (“Boyacá”) of
several companies active in the distribution market of periodical
publications.
The commitments accepted by the NCC establish that Boyacá must
maintain the sale outlets and the commercial and service terms applied
to date by the acquired distributors for five years, although it is
entitled to make the necessary adjustments to increase efficiency.
Similarly, other mechanisms have been established to guarantee
transparent, objective and non-discriminatory conditions in the services
offers made by Boyacá to new customers, as well as to avoid access to
sensitive information among editors.
Finally, Boyacá must amend its exclusive distribution contracts with
Grupo Prisa and Grupo Unidad Editorial by limiting their term to five
years, eliminating the penalties in the event of non-renewal and the
preference clauses, and confining their purpose to the products that are
currently being distributed. An independent trustee will ensure the
fulfilment of these commitments, which will be applicable for five years.
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THE SPANISH COMPETITION AUTHORITY IMPOSES A FINE ON ORANGE FOR GUN-JUMPING
IN THE ACQUISITION OF SIMYO
The Council of the Spanish Competition Commission (“NCC”)
imposed a EUR 61,600 fine on Orange (France Telecom España, S.A.U.) for
the execution of the acquisition of Simyo before being notified to and
authorised by the NCC. Contrary to what was argued by Orange, the NCC
considered that the concentration triggered both the turnover and the
market share notification thresholds.
Firstly, Orange alleged that the turnover of the brand “Ortel” (property
of Ortel Mobile España, S.L., a wholly owned subsidiary of Simyo) should
not be taken into account for the calculation of the turnover of the
target, since this company had been sold before the transaction.
Nevertheless, since Ortel was not a fully operative undertaking at
the time the transaction was completed, the contracts with Ortel’s end
customers were managed and served by Simyo. The NCC stated that, despite
customers being served under the “Ortel” brand, the contracts were
signed on behalf of Simyo, therefore the corresponding invoices should
be allocated to Simyo. In addition, the NCC confirmed that there is no
certainty about the subsequent transfer of these customers to Ortel. In
conclusion, in the NCC’s view, the transaction exceeded the turnover
threshold.
As regards the market share threshold, the NCC affirmed that Orange
acquired a 100% share in the call termination and short message
wholesale market in Simyo’s network. The NCC not only referred to the
numerous precedents on competition grounds, but also to the market
definition of the Telecommunications Market Commission.
The Council of the NCC stated that there were no reasonable doubts
regarding market definition and that Orange did not provide an
alternative definition or an economic analysis that may have differed
from the precedents.
Finally, the Council’s Resolution determined that Orange is
responsible, at least due to negligence, because on the basis of its
position and experience in the market, it could not ignore that the
notification was compulsory. However, in order to calculate the fine,
the NCC took into consideration Orange’s willingness to cooperate during
the investigation and the fact that it notified the transaction
voluntarily shortly after its completion. As a result, the fine imposed
was set at 0.1% of the total turnover of the acquired business.
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ACCESSING A LIST OF CONTACTS IN A MOBILE TELEPHONE WITHOUT JUDICIAL
AUTHORISATION DOES NOT CONSTITUTE AN INFRINGEMENT OF THE DUTY OF SECRECY
OF COMMUNICATIONS, BUT COULD BE A BREACH OF THE RIGHT TO PRIVACY
The Constitutional Court (“CC”) has set a precedent in a case
involving an alleged infringement of the fundamental rights to privacy
and secrecy of communications that may be relevant to analyse the
lawfulness of the competition authorities’ intervention in dawn-raids.
The CC decided an appeal against a judgment of the Supreme Court. The
case concerned the location and arrest of the appellant through the
contact list of a mobile telephone seized by the police.
The CC determined that the police examining the contact list of a
mobile telephone without judicial authorisation does not constitute a
breach of the right to secrecy of communications. The police officers
limited their involvement to examining the mobile telephone’s contact
list. This data in itself cannot be considered as part of a current or
future communication. Moreover, the CC clarified that the most important
factor in determining if a breach has taken place is the nature of the
information accessed, not the type of device where it is stored, nor the
fact that it is a mobile telephone.
However, the CC stated that examining the contact list on a mobile
telephone could constitute a breach of the right to privacy.
The CC analysed whether the requirements to justify the mentioned
intervention were fulfilled: the existence of a constitutionally
legitimate purpose, a legal provision allowing the restrictive measure
and the proportionality principle. As regards the first requirement,
there was a public interest concerning the investigation of a crime. As
to the second requirement, there are specific regulations in the
Criminal Procedure Law (Ley de Enjuiciamiento Criminal), in the
Basic Law of the Security Forces (Ley Orgánica de fuerzas y cuerpos
de seguridad) and in the Basic Law on the Protection of Citizens (Ley
Orgánica sobre protección de la seguridad ciudadana). In relation
to the proportionality principle, the CC believed that the measure
adopted by the police officers was suitable, in that it lead to the
identification and arrest of the appellant. Furthermore, the measure was
necessary as there was not any other less restrictive means to identify
those responsible for the crime. Finally, the CC held that it was a
measured and balanced action in relation to the seriousness of the
offence, since it provides more benefits to the public interest than
damages to the appellant’s right to privacy.
The CC concluded that the police action analysed did not breach the
right to personal privacy, even though it was carried out without the
user’s consent or a judicial authorisation.
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REFERRAL BY THE SPANISH NATIONAL COMPETITION AUTHORITY TO NEW
DISCIPLINARY PROCEEDINGS IN ORDER TO AVOID EXPIRY CONSTITUTES A BREACH
OF THE PRINCIPLE OF LEGALITY
In 2008, the Spanish National Competition Commission (“NCC”) became
aware of anticompetitive practices incurred by several manufacturers of
personal hygiene gels through a leniency application submitted by one of
the manufacturers that attended the meetings of this group. One
representative of Colomer participated in one of such meetings in which
another company informed its competitors of its intention to reduce the
size of the 750ml containers and maintain its current prices, inviting
the remaining companies attending the meeting to do the same. The
representative of Colomer had a passive role in that meeting and
subsequently informed the other companies attending in unequivocal terms
about its intention not to take part in the agreement. In spite of this,
Colomer was summoned for a second meeting held by the cartel in February
2006, which it did not attend.
The NCC decided to initiate disciplinary proceedings against Colomer,
but the Investigations Division later proposed to the NCC that all
proceedings against Colomer should be closed because Colomer’s
participation in the cartel had not been proven in the NCC’s view. The
NCC sanctioned the gel manufacturers that participated in the cartel,
except for Colomer. However, the NCC instructed the Investigations
Division to start new disciplinary proceedings against Colomer in order
to investigate its potential liability in the cartel that had been
sanctioned.
The NCC subsequently digressed from the Investigations Division’s
opinion and sanctioned Colomer with a EUR 170,300 fine for its
participation in a cartel and not distancing itself from it in a
sufficiently clear manner.
In its decision of 28 June 2013, the Spanish National Court held that
by postponing the resolution of the matter regarding Colomer and its
referral to new disciplinary proceedings, the NCC breached the principle
of legality, which the public authorities must abide by, since its
acceptance would have avoided the expiry of the proceedings.
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THE
COUNCIL OF MINISTERS APPROVES THE BASIC STATUTE OF THE NATIONAL MARKETS
AND COMPETITION COMMISSION