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

Section 10 makes a clear distinction between the assessment criteria used by the CNMC, which relate to a potential impediment to the maintenance of effective competition on the market and those used by the Government, which relate to the general interest. Thus, the CNMC assesses the restrictive effect of a merger by evaluating the structure of the relevant market, the market position of the partie …

Control criteria

The scheme for the control of concentrations in Spain lays in Competition Act No 15/2007 and Royal Decree No 261/2008 which brings Spanish law closer to and EU merger law based on EU Regulation No 139/2004 of 20 January 2004. Compared to the previous regime under Royal Decree No 1443/2001 of 22 December 2001, the new Spanish law on concentrations clarifies and extends the concept of concentration for the purposes of control, renders the system of compulsory notification more flexible, and strengthens the competition authority's role in the control of concentrations while limiting the government's prerogatives and specifies the criteria of substantive assessment that should guide the decisions of both bodies.

Context

Section 7 of the Act defines a concentration as a stable change in the control structure of an undertaking which can result from a merger between two or more previously independent undertakings, the acquisition in whole or in part of the control of one or more undertakings, or the creation of a joint venture and, in general, the acquisition of joint control of one or more undertakings, where they perform on a lasting basis the functions of an autonomous economic activity. By including all the full-function joint ventures in the scope of the review, Act No 15/2007 unifies the treatment of concentrative joint ventures, while under the previous scheme only cooperative joint ventures were examined under the restrictive agreement provisions. In the case of full-function joint ventures, coordination is assessed according to Sections 1 and 2 of the Act.

Control is defined as the possibility of exercising a decisive influence on the activities of an undertaking. 

Furthermore, the assessment may take account of ancillary restraints necessary for the implementation of the merger.

Concept of concentration

Contrary to EU law, Spain retains a market share threshold, along with the turnover thresholds. In effect, under Section 8 the control procedure applies when the market share of the undertaking subsequent to the acquisition is equal or superior to 30% of the national market or when certain turnover thresholds are met: the total volume of sales in Spain must exceed EUR 240 million in the last financial year and at least two of the participants must each have an individual turnover in Spain of more than EUR 60 million. However, the provision, as amended by Act No 2/2011 of 4 March 2011, exempts from control transactions concerning undertakings which exceed the 30% market share threshold, where the acquired undertaking's global turnover in the last financial year is below EUR 10 million, provided that the parties do not hold an individual or combined market share equal or greater than 50% in the relevant markets. Thanks to the market share threshold, the CNMC was able to assess digital mergers in a way other Member States could not.

Pursuant to Section 5 of Decree No 261/2008, the turnover of undertakings belonging to a group is the sum of the affected undertaking's turnover plus the aggregate turnover of all the companies making up the group. The decree also sets out a calculation method for credit and other financial institutions, as well as for insurance companies, identical to that provided by the EU Merger Regulation.

Thresholds

Section 10 makes a clear distinction between the assessment criteria used by the CNMC, which relate to a potential impediment to the maintenance of effective competition on the market and those used by the Government, which relate to the general interest. Thus, the CNMC assesses the restrictive effect of a merger by evaluating the structure of the relevant market, the market position of the parties, their economic and financial power, the existence of actual or potential competition, the alternatives available to suppliers and consumers, their access to supplies or markets, barriers to entry, supply and demand trends, buying power, or economic efficiencies, such as the contribution to improvement of systems of production or commercialization and the business competitiveness.

The Government may make its approval subject to compliance with conditions that ensure that the operation satisfies goals of general interest, such as defense and national security, the protection of public security or public health, free movement of goods and services, environment protection, promotion of technological research and development or sectorial regulation.

Global Competition Law

703. Control criteria

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Les notions juridiques connexes

703. Control criteria

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