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

Act No 15/2007 introduces a leniency scheme, very similar to the EU procedure, whereby the first undertaking part of a cartel to denounce its existence and to provide substantial evidence for the investigation may be exonerated from payment of the fine, provided it cooperates fully, continuously and expeditiously with the CNMC, brings an end to its participation in the infringing conduct, has not  …

Leniency

Undertakings found to have entered into restrictive agreements or engaged in abuse of dominance may be required by the CNMC's Council to desist from such behavior and to remedy its effects (Section 53).

Cease and desist orders

Fines for breach of the prohibition on restrictive agreements or abuse of dominance may reach EUR 10 million for very serious infringements, or up to a maximum of 10% of the total turnover of the infringing undertaking in the fiscal year preceding the CNMC's decision.

When imposing a fine, the CNMC must take into account, inter alia, the dimension and characteristics of the relevant market, the market shares of the undertakings concerned, the scope and duration of the restriction on competition, the effects of the restriction on competition on the rights and legitimate interests of consumers or on other economic operators, the illicit benefits obtained as a consequence of the infringement and the aggravating or mitigating circumstances that exist in relation to each of the responsible undertakings (Section 64). On 10 October 2018, the CNMC published Guidelines on the determination of the amount of fines, which provide further detail on the methodology it follows in this regard. Furthermore, infringements are classified as minor, serious and very serious according to criteria set in Section 62, and this classification commands the percentage of the undertaking's turnover to be taken into account for the setting of the amount of the fine (Section 63). The transposition of the ECN+ Directive leads to an increase of the level of the fines, which might take them to 10% for any competition law infringement. Finally, a fine of up to EUR 60,000 may be imposed on the legal representative of the undertakings personally. 

The CNMC may also impose coercive fines up to EUR 5,000 a day in order to force the undertakings concerned to cease prohibited conduct, to remedy the effects of such conduct or to fulfill the commitments or conditions agreed (Section 67). The same fines may be imposed in order to ensure compliance with interim protective measures.

On 10 June 2020, the CNMC issued Guidelines on competition compliance programs according to which the setting up of such a program may justify a reduction of the amount of the incurred fine or a lift of the ban on contracts with public authorities.

Fines

Act No 15/2007 introduces a leniency scheme, very similar to the EU procedure, whereby the first undertaking part of a cartel to denounce its existence and to provide substantial evidence for the investigation may be exonerated from payment of the fine, provided it cooperates fully, continuously and expeditiously with the CNMC, brings an end to its participation in the infringing conduct, has not destroyed evidence or disclosed its application for exemption to third parties and has not been the instigator of the prohibited agreement (Section 65). Likewise, the amount of the fine may be reduced from 20% to 50% for undertakings that collaborate but do not meet the requirements for complete exemption (Section 66).

On 21 June 2013, the CNC (now replaced by the CNMC) published a “Communication on the leniency programme” to enhance “the transparency and predictability of its actions in those infringements proceedings in which applications are filed for exemption from payment of the fine and/or reduction of the fine (leniency applications)”. The Communication applies to leniency applications by undertakings and individuals liable for non-time-barred infringements of Section 1 of the Act and, if applicable, of Article 101 TFEU, where the infringement consists of secretly coordinating their conduct in the market or influencing the parameters of competition by means of conduct such as directly or indirectly fixing prices or other trading or service conditions, production or sales quotas, exchanges of information on prices or on projected amounts, sharing markets, including bid-rigging practices, restriction of imports or exports or joint boycotts, all of which fall within the concept of a cartel. The Communication also clarifies that the exemption or reduction of the fine will be available to those filing the relevant application, as well as to their legal representatives or the persons on their executive bodies who participated in the cartel, but not to other entities having also participated in the cartel, such as an association of which the leniency applicant is a member. However, eligibility as a leniency applicant extends to undertakings and individuals irrespective of whether their liability in the conduct derives from their direct involvement in the cartel, their decisive influence as parent company or as a successor undertaking to the one that originally participated in the cartel. 

The Communication then details the information that must be provided in the application, in addition to the applicant's acknowledgement of participation in the cartel. The Competition Directorate will check that the applicant has provided evidence that fulfils the requirements of the Act and that the applicant has not adopted any measures to coerce others to join or remain in the cartel. Furthermore, the leniency applicant is required to cooperate with the CNMC fully, continuously and diligently until the conclusion of the proceeding and to display a genuine spirit of cooperation. Applicants who hinder the investigation or the proceeding by conduct not in keeping with that spirit will not be eligible for leniency. The Communication also clearly specifies that an exemption application may only be submitted before the Statement of Objections has been notified. 

Global Competition Law

697. Leniency

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Les notions juridiques connexes

697. Leniency

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise