Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The CNMC Council may order, ex officio or at the request of any interested party, the examination of evidence not examined during the handling phase by the Directorate of Investigation and the performance of complementary actions with the aim of clarifying precise issues for the formation of its judgment. The interested parties are notified of this decision and have a period of seven days to submi …

Proceedings before the Council of the CNMC

The Competition Directorate established by Act No 3/2013 may initiate proceedings sua sponte be it on its own initiative or that of the Council of the CNMC, or upon complaint of an interested party. The conditions as to the form of the complaint are laid down in Section 25 of Decree No 261/2008 and in Annex I thereof. The transposition of the ECN+ Directive operated in 2021 and 2023 provides the CNMC with the authority to define its enforcement priorities and, as the case may be, to dismiss complaints even without examining them.

Section 40 establishes the investigation powers of the Competition Directorate. The personnel of the Directorate may, even without the undertaking's consent, examine, obtain copies, take extracts from books and company documents, irrespective of the medium on which they are stored and request oral explanations with the possibility of recording the answers. They may access any premises, land and means of transport of the undertakings or associations of undertakings and, as under EU Regulation No 1/2003, the private homes of the entrepreneurs, managers and other members of the staff of the undertakings with the prior consent of the occupants or, failing this, the corresponding judicial authorization. Where there is a risk of opposition to the investigation, the personnel of the Directorate must request a judicial authorization, when this involves the restriction of fundamental rights.

Undertakings concerned are notified of the facts allegedly constituting a breach, in order to allow them to respond within a period of fifteen days (Section 50, Section 3). When the file is complete, the Competition Directorate formulates a proposal for resolution, which is notified to the interested parties, who have another period of fifteen days to submit their observations. The Competition Directorate then refers the proceedings to the CNMC's Council, attaching to it its proposal for resolution.

The time-limit for investigating the case is of twelve months from the date of the decision to initiate proceedings (Section 28 of Royal Decree No 261/2008).

Complaints and investigations

The CNMC Council may order, ex officio or at the request of any interested party, the examination of evidence not examined during the handling phase by the Directorate of Investigation and the performance of complementary actions with the aim of clarifying precise issues for the formation of its judgment. The interested parties are notified of this decision and have a period of seven days to submit observations. This decision shall set, whenever possible, the period for its performance. Where the Council finds that the matter may not have been duly qualified in the proposal of the Competition Directorate, it submits its own assessment to the interested parties and to the Competition Directorate, who are granted a period of fifteen days to submit their observations. For a summary of the rules relating to the protection of confidential documents, practitioners can refer to the CNMC Guidelines on the treatment of confidential information during competition proceedings published on 4 June 2020.

According to Section 52, proceedings may be terminated, upon proposal of the Competition Directorate, where the alleged offenders propose commitments deemed to resolve the anticompetitive effects of their behavior, and where the public interest is sufficiently guaranteed. The termination of proceedings can occur at any time of the proceedings but before the Competition Directorate refers its proposal for resolution. Section 39 of Royal Decree No 261/2008 sets the commitment procedure. The commitments must be presented within three months of the decision to make commitments. The CNMC 's Council may either uphold the adequacy of the commitments submitted and resolve the disciplinary proceeding, or deem that the commitments presented do not adequately resolve the effects on competition arising from the conduct examined or do not sufficiently safeguard the public interest, and, if new, more suitable commitments are not submitted, decide, to resume the disciplinary proceedings. On October 2011, the CNC issued Guidelines on termination by commitments of infringement proceedings, aimed at establishing the general criteria guiding its actions and letting companies know how to proceed when requesting and processing a termination by commitments of their infringement proceedings.

According to Section 53 of the Act, the Council may declare in its resolution that prohibited practices or agreements exist, or alternatively that they have not been proven to exist, or that due to their minor importance, they are not capable of significantly affecting competition. The decision may contain a cease-and-desist order applicable within a certain period, or impose conditions, obligations, fines or any other measure authorized by the Act. In any case, the maximum length of the proceedings must not exceed eighteen months (Section 36), but cases of extension of periods and suspension of their computation are foreseen in Section 37. According to Section 28 of Royal Decree No 261/2008, expiry of the maximum time-limit without a resolution having been issued causes the proceeding to lapse.

Once the procedure of control has begun, interim relief may be imposed pending a final decision (Section 54) by the CNMC's Council, acting either sua sponte or at the request of an interested party, on proposal of the Competition Directorate. Pursuant to Section 40 of Royal Decree No 261/2008, relief will be handed down, inter alia:

- where it is necessary to avoid harm which could be caused by the activity(ies) the subject of the procedure;

- where a guarantee, validated by the Council, is offered so as to provide sufficient compensation for any future damages arising out of the award.

In this regard, interim measures cannot be awarded where they will cause irreparable damage to interested parties or involve a violation of fundamental rights. Finally, any interim relief awarded automatically comes to an end at the moment of finalization of the CNMC's decision.

Interim relief

According to the First Additional Provision to Act No 15/2007, and pursuant to Section 86ter 2. (f ) of the Judiciary Act 6/1985, of 1 July 1985, the commercial courts (Juzgados de la Mercantil) have jurisdiction in civil actions concerning the application of Sections 1 and 2 of Act No 15/2007.

Title II of Royal Decree-Law No 9/2017 of 26 May 2017 amended Act No 15/2007 in order to transpose EU Directive 2014/104 on damages actions for competition law infringements into national law. A new Title VI is introduced, Article 71 of which provides that undertakings having infringed competition law i.e. Articles 101 and 102 TFEU and Sections 1 and 2 of Act No 15/2007 are liable to compensate for the damage caused by their actions. The actions of an undertaking will be attributable to the undertaking(s) controlling it, unless its behavior has not been determined by the latter. Section 72 provides for a right to full compensation for the damage suffered i.e the actual loss, loss of profit and interest. The Decree-Law however rules out any overcompensation in particular by the award of punitive damages. Pursuant to Section 73, all the undertakings responsible for  the infringement will be held jointly and severally liable. Under certain conditions this rule does not apply fully to SMEs and leniency recipients, whose liability will be limited to compensation of the damage suffered by their direct or indirect customers (the rule also applies to direct or indirect suppliers of leniency recipients). Under Section 74, the statute of limitations for lodging a complaint is set at five years (compared to one year previously) running from the end of the infringement or the claimant's acquaintance i) that the conduct complained of constitutes a competition law infringement, ii) that harm has been caused as a result of the infringement, and iii) of the identity of the offender. Investigations or proceedings launched by a competition authority and extra-judicial settlement negotiations may interrupt the time-limit. In addition, Section 75 states that the finding of an infringement made in a final decision of a Spanish competition authority or national court will constitute undisputable proof of a fault. The same finding made by the competition authority or court of another Member State will only constitute a rebuttable presumption of an infringement. The burden of proof of the damage suffered lays on the claimant but a presumption is established that cartels cause harm (Section 76(3)). Conversely, the defendant may invoke the passing-on defense but will have to prove its allegations. Indirect purchasers also benefit from a rebuttable presumption that the overcharge resulting from the infringement has been passed on to them (Section 79(2)). 

Decree-Law No 9/2017 also amends Act No 1/2000 of 7 January 2000 on Civil Procedure to introduce a new Section 1.a bis relating to the disclosure of evidence in the context of damages actions for competiton law infringements. The new rules aim at bringing Spanish law in conformity with the requirements of EU Directive 2014/104. 

Further to the CNMC's commitments in its 2023 action plan to strengthen the competition culture and good regulatory practice, the CNMC issued guidelines on 11July 2023 aimed at judges, lawyers, experts and consumers involved in damages actions for competition law violations.

The CNMC's guidelines are meant to help quantify the damages induced by competition law infringements.

Global Competition Law

691. Proceedings before the Council of the CNMC

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Les notions juridiques connexes

691. Proceedings before the Council of the CNMC

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Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise