November 2015
COMPETITION AND EUROPEAN
UNION LAW
1. Supreme Court declares that a company’s consent to an inspection is only valid if the company has all the relevant information at its disposal
The Supreme Court (the “SC”) has declared the former National Competition Commission’s (the “CNC”) inspection of a company’s premises within the context of the Peluquería Profesional case to have been illegal. The ruling holds that the consent given by the company was invalid, since it had not been informed of the fact that the CNC had sought judicial authorisation to enter its premises, and that such request for authorisation was rejected by the judge on the grounds that the reason for the inspection had not been adequately proven. The SC considered that it was foreseeable that the company would have withheld consent, had the CNC not intentionally concealed those circumstances, and therefore held the consent to be null.
As a consequence of the inspection being deemed null, the documents seized in the course of the inspection could not be included as evidence in the case, since they were evidence obtained by illegal means. After analysing the remaining evidence, the SC concluded that, provided the CNC considered all the documents as a whole, evidence illegally obtained is inextricably linked to the rest of the evidence, which means that every evidence is affected by invalidity. Consequently, the SC annulled the sanction imposed on the company.
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2. Supreme Court rules on the cassation appeals related to the National Competition Commission’s decision in the decennial liability insurance cartel case
The Supreme Court (the “SC”) has annulled several judgments of the National Court (Audiencia Nacional, the “NC”) in relation to a decennial liability insurance cartel.
The former National Competition Commission (the “CNC”) imposed a EUR 120 million total fine on several insurance and reinsurance companies for their participation in an agreement to fix minimum prices for decennial liability insurance policies. The sanctioned behaviour consisted in the conclusion of an agreement fixing minimum prices; its application; the performance of surveillance measures for monitoring compliance and the performance of retaliation measures for punishing incompliance.
The NC annulled the fine imposed by the CNC for several reasons. In some cases, the NC considered that the participation of some companies had not been proven. In other cases, the NC declared that there were possible and reasonable explanations for the lawfulness of the conduct. In other cases, it considered that, regarding the behaviour of the companies, there were alternative explanations to the mere existence of an agreement.
The SC annulled some of the rulings of the NC because it considered that the alternative explanations submitted by the companies were insufficient to exclude their liability and that the NC did not correctly appreciate the lawfulness of the conduct or of those explanations. The SC considered that the exchanges of information had the purpose of harmonising minimum tariffs and contractual conditions for insurance and reinsurance policies and that various monitoring and retaliation measures existed, that themselves amounted to anticompetitive conduct. However, the SC upheld the annulment of the CNC’s decisions on the appeals lodged by two companies. In those two cases, the SC confirms the conclusions of the NC about the lack of evidence regarding the participation of these two companies in the behaviour.
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3. Spanish National Court annuls a sanction imposed by the National Competition Commission for gun jumping on Gestamp
The former National Competition Commission (the “CNC”) had imposed a sanction for the execution of a concentration in breach of a standstill obligation. The transaction had been divided into two phases. The first consisted of the acquisition of 10% of the target’s capital, which meant granting the purchaser a veto right on agreements relating to specific matters, including access to external financing, approval of annual accounts and appointment of a director. During the second phase, the purchaser obtained veto rights on strategic matters after acquiring an additional 30% of the capital. The CNC considered that the acquisition of the first package of shares already conferred control to the purchaser, as it enabled the purchaser to block decisions related to the target’s commercial policy. In contrast, the National Court held that the CNC failed to properly distinguish between decisions affecting control over strategic matters and those relating to the protection of the financial interests of minority shareholders and investors, and therefore ruled that the veto right under the first phase did not confer control.
Additionally, the National Court ruled that the execution of the first phase of the transaction could not be considered as an economic concentration, given that keeping the veto rights included in the first phase was subject to the execution of the second phase within a predetermined timeframe.
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4. National Markets and Competition Commission imposes fines totalling EUR 22.8 million on Repsol and several independent petrol stations within its network for anticompetitive practices
The National Markets and Competition Commission (the “CNMC”) has fined Repsol and several independent petrol stations within its network for directly fixing the retail price for automotive fuel. In particular, the CNMC considered that the parties undertook to align the prices charged by petrol stations located in the area of Lugo, and that sensitive information had been exchanged with a petrol station in Madrid.
The proceedings arose from reports issued by the former Competition Authority and the National Energy Commission (which currently forms part of the CNMC) suggesting the likely existence of price-fixing conduct in the retail fuel market.
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5. National Markets and Competition Commission imposes fines of EUR 57.7 million on various companies operating in the paper and corrugated cardboard markets
The National Markets and Competition Commission has imposed fines of EUR 577 million on 18 undertakings in the paper and corrugated cardboard markets for a single continuous infringement lasting over ten years. The infringement involved exchanges of strategic sensitive information, agreements to raise prices, customer sharing and collective recommendations. Those actions affected the production of paper pulp and corrugated cardboard. Sanctions were also imposed on the sector association for its role in facilitating the infringement.
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6. National Markets and Competition Commission fines several undertakings providing refrigerated transport services and the sector association
The National Markets and Competition Commission (the “CNMC”) has fined various undertakings active in the refrigerated transport services market and the sector association for price fixing and sensitive information exchanges.
The CNMC pointed out that the parties were aware of the illegal nature of their conduct. Such knowledge was allegedly shown by their intention to establish an independent franchise to conceal the anticompetitive practices and avoid the potential imposition of a fine.
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7. National Markets and Competition Commission fines automobile manufacturers and distributors and two consulting firms for participation in a cartel
The National Markets and Competition Commission (the “CNMC”) has imposed a total fine of EUR 171 million on 21 manufacturers and distributors of automobile brands in Spain and two consulting firms for taking part in a single continuous infringement involving the exchange of commercially sensitive information related to business management, post-sale services and marketing in the Spanish market for automobile distribution and post-sale services.
The CNMC considered the exchange of information as creating a cartel in view of the type of information exchanged and the effects that it could generate on the market.
The consulting firms Snap-On and Urban Science were also sanctioned for their critical role in implementing various information exchange programmes in the context of the cartel.
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8. National Markets and Competition Commission fines Mediaset EUR 3 million for breaching mandatory commitments for the Telecinco/Cuatro concentration
The National Markets and Competition Commission (the “CNMC”) has imposed a fine of EUR 3 million on the mass media undertaking Mediaset España for infringing the commitments to which the authorisation of its acquisition of sole control over Cuatro was subject. The purpose of the commitments was to ensure that advertisers could continue to buy advertising space separately from each of the channels of the new group following the concentration.
The CNMC considered that Mediaset breached its commitment to not create pricing policies that, in law and in practice, directly or indirectly linked the advertising space ofTelecinco and Cuatro channels. In particular, Mediaset offered different conditions to advertisers that accepted to include a commitment regarding a considered as a factor in the negotiations with advertisers the commitment of a minimum investment in these channels.
This is the second sanction imposed on Mediaset for infringing the commitments it undertook within the context of the concentration. In February 2013, the former Competition Authority imposed a fine of EUR 15 million on Mediaset for breaching its obligation to separately market advertising space on the Telecinco and Cuatro channels.
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9. The National Markets and Competition Commission will be able to impose bans from contracts with public administrations to natural and legal persons sanctioned for distortions of competition
The recently approved Act 40/2015, of 1 October, on the Legal Regime of the Public Sector, empowers competition authorities to impose a ban from contracts with public administrations on natural and legal persons sanctioned for distortions of competition. This prohibition would be applied in addition to the penalties already foreseen in the Spanish Competition Act 15/2007, of 3 July.
In particular, the competition authority will be able to determine the scope and duration of the ban from public contracts in its sanctioning decision. Alternatively, the authority will be able to submit a copy of the decision to the Procurement Board so that, where appropriate, they can initiate a procedure ex oficio to declare the ban from public contracts. The effectiveness of the prohibition requires the sanctioning decision to be final.
1. Supreme Court declares that a company’s consent to an inspection is only valid if the company has all the relevant information at its disposal 
