The new Spanish regulator is operational
After the transitional period established by Law 3/2013 of 4 June, the new Spanish competition authority (“CNMC”) became operational on 7 October 2013.
Despite Law 3/2013 establishing the possibility of suspending the proceedings, subject to statutory limitations, no significant delay has occurred and the various directorates of the new regulator as well as both the Competition and Regulatory Control chambers have operated normally.
Commitments in a case of alleged horizontal practices between competitors
The Spanish competition authority accepts the settlement of infringement proceedings for alleged anticompetitive practices between competitors in the market for the distribution of bottled CO2 for the food market within the framework of CO2 distribution agreements.
The practices consisted of: (i) minimum and maximum price fixing for the sale of CO2 to end clients and the agreement on the prices to be applied to specific clients; (ii) market sharing in the distribution of CO2 to end clients in the Canary Islands; and (iii) monthly provision of information by the distributor of CO2 to the seller on sales to the seller’s clients and distributors.
The commitments ended the price fixing by the seller and the distributor, or imposed by the former, and the market sharing practices in the Canary Islands.
As regards the data concerning sales made by the distributor to clients of the supplier, it must be grouped by “clients” and “distributors” at a regional level and be sent every six months.
The CNMC fines four football clubs and Mediapro for failing to comply with a decision
The CNMC fined Fútbol Club Barcelona, Real Madrid Club de Fútbol, Real Racing Club de Santander, Sevilla Fútbol Club and Mediapro EUR 15 million for entering into agreements for the acquisition of audiovisual rights over matches of La Liga and the King’s Cup (excluding the finals) for a period exceeding three seasons, thus failing to comply with a decision that had established such limit.
The CNMC fined Real Madrid Club de Fútbol despite the fact that its breach had not been detected through monitoring proceedings. The CNMC considered that no failure to comply needed to be established in the monitoring proceedings for there to be liability and a sanction in the subsequent sanctioning proceedings.
The contract signed by Sevilla Fútbol Club with Mediapro established the acquisition of rights for four seasons, although the contract included a clause whereby the duration of the agreement would be limited to three seasons should the Audiencia Nacional dismiss the appeal lodged against the decision that limited the duration of these types of contracts to three years. Despite this, the CNMC considered that the signing of the contract for four seasons constituted a breach of the previous decision, thus sanctionable.
Action for damages in competition infringements – The Spanish Supreme Court orders the payment of compensation to confectionary manufacturers
The Supreme Court declares that members of cartels may invoke the passing-on defense, but carry the burden of proof. This case illustrates the difficulty of proving the full passing-on of damages.
As defence against an action for damages brought by confectionery manufacturers, Ebro Foods argued that the latter had passed-on the price increase of sugar to their clients by increasing the price of the final product, which enabled them to recover the loss suffered as a result of the price increase of the raw material. The Supreme Court stated that such defence is admissible, although the burden of proving that the damage suffered has been entirely passed-on to the final client falls on Ebro Foods.
The Supreme Court stated that confectionery manufacturers despite the passing-on could still have been harmed by a reduction in sales and market share due to the price increase of the final products, which would have made them less competitive and prevented them from effectively recovering the damages suffered as a result of the increased price of sugar, even if they had increased the final sale price.
The Supreme Court upholds the sanction imposed on the Palma de Mallorca City Council for hindering competition in the funerary services market
The Supreme Court upheld the sanction imposed on the Palma de Mallorca City Council for sending letters urging hospital directors, clinics and nursing homes to arrange the embalming of corpses with companies holding a City Council licence.
The City Council’s actions were inconsistent with the public authority prerogative of impartiality, by securing the interests of the municipal company with which it operated in the funerary services market. The court considered that the actions were not merely informative, as it requested recipients of the letters to “take the appropriate measures” to avoid the operation of other funerary service providers.
The Audiencia Nacional confirms the existence of a cartel in the fluid pumps sector
The Spanish Audiencia Nacional rejected the appeal lodged by Bombas Ideal, S.A. and Bombas Bloch, S.A. requesting that the decision fining them for their involvement in a cartel in the fluid pumps sector be declared null. The unlawful practices relate to exchanges of information, alignment of commercial conditions and the signing of agreements between companies, whether or not members of the Spanish Association of Fluid Pump Manufacturers.
The appellants argued that the facts had not been assessed correctly, as the agreements were not secret. However, the Audiencia Nacional considered that the agreements were secret because, although there was an association and the minutes of its meetings were not secret, the mechanisms that the undertakings intended to implement, and actually implemented, to ensure the execution of the agreements, and to guarantee the continuity of the exchanges of information, were secret.
Moreover, the fact that no price-fixing exists does not mean that such conduct was not anticompetitive, because the coordinated action of competitors regarding certain commercial variables puts them in a more advantageous bargaining position in relation to clients than that in which they would have been without the agreement.
The lack of access to leniency statements does not imply defencelessness
The Spanish Audiencia Nacional upheld the decision of the Spanish Competition Authority fining Puig S.L. for its participation in a cartel to reduce the size of liquid soap bottles while maintaining price levels.
The appellant claimed defencelessness due to an infringement of its right to access the leniency statements on which the charges were based. Nevertheless, the Spanish Audiencia Nacional ruled out the existence of defencelessness given that all the facts on which the declaration of infringement was based were known by the appellant. Moreover, under competition law, third parties may not access leniency statements.
Furthermore, the Audiencia Nacional considered irrelevant the fact that the costs of changing the size of the bottle may reduce the benefit to the companies participating in the cartel. On this point, the Audiencia Nacional stated that the effects in the market must be analysed from a consumer’s perspective, taking into account the amount actually paid for the product, and not from the perspective of the company’s benefit.