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

After being notified of the operation, the Competition Directorate conducts its assessment according to the criteria laid down in Section 10 and drafts a report containing a proposal for resolution. The CNMC's Council, on the basis of that report, issues a phase 1 resolution, in which it may: authorize the concentration, or submit its authorization to the fulfillment of certain commitments propose …

Proceedings before the CNMC

A proposed concentration must be notified to the CNMC prior to its implementation where it falls within established thresholds (Section 9). The CNMC is also available to consult with undertakings prior to notification regarding whether the contemplated operation is a concentration within the meaning of Section 7 or whether thresholds are met (Section 55(2)). Spanish law does not establish any time-limit for notifying a concentration. However, the concentration cannot be implemented until it has been notified (Section 9(2)). There is an exception for public takeovers, which can be implemented prior to notification if notification occurs within a period of five days as of the presentation of the application for authorization of the bid to the National Securities Commission and provided that the buyer does not exercise the voting rights attached to the shares bought.

Requests to implement the concentration pending authorization are handled by the CNMC's Council on the proposal of the Directorate of Investigation and by prior motivated request. Lifting the suspension may be subject to the fulfillment of conditions and obligations (Section 9(6)).

Filing fees range from EUR 5,502 to EUR 109,860 depending on the aggregate total turnover in Spain of the undertakings concerned or are set at EUR 1,500 where the operation is subject to a simplified procedure.

Merger notification

After being notified of the operation, the Competition Directorate conducts its assessment according to the criteria laid down in Section 10 and drafts a report containing a proposal for resolution. The CNMC's Council, on the basis of that report, issues a phase 1 resolution, in which it may: authorize the concentration, or submit its authorization to the fulfillment of certain commitments proposed by the notifying party, or decide to initiate the second phase of the procedure where it considers that the concentration may hinder the maintenance of effective competition in all or part of the national market (Section 57). The maximum duration of phase 1 is one month from reception of a due form notification (Section 36(2)(a))

Where a second procedural phase is initiated, the Competition Directorate must draw up a note on the concentration which is made public and informs the natural or legal persons that may be affected and the Consumer Council, for them to submit their observations within a period of 10 days.

The Competition Directorate then drafts a Statement of Objections indicating the possible obstacles to competition resulting from the concentration, which is notified to the interested parties, who have another period of 10 days to submit their observations. Then the Competition Directorate drafts a final proposal for resolution on the basis of which the CNMC's Council may: authorize the concentration, or make its authorization conditional upon the fulfillment of commitments proposed by the notifying parties or conditions, or prohibit the concentration (Section 58). Second phase proceedings must not exceed two months (Section 36(2)(b)).

Where, in the second phase, the CNMC's Council has resolved to prohibit the concentration or to subordinate its authorization to the fulfillment of commitments or conditions, the Minister of Economy and Finance may refer, within 15 days (Section 36(3)), the decision to the Council of Ministers for reasons of general interest (Section 60). The Council of Ministers has one month (Section 36(4)) to either confirm the resolution issued by the CNMC's Council or authorize the concentration, with or without conditions, for reasons of general interest other than protecting competition.

Spanish Royal Decree-Law No. 5/2023 has introduced a number of changes to the merger control procedure before the CNMC : 

- the CNMC now has a maximum period of 15 days to issue a decision on mergers notified using a short form, provided that a confidential version of the draft notification form has been provided to the Competition Directorate;

- the maximum period for issuing a decision on Phase II has been extended from two to three months, while the maximum term for issuing a decision on Phase I merger procedures continues to be one month; and

- a one-month deadline has been set for issuing a decision concerning prior consultations with the CNMC aiming to determine if a given transaction constitutes a merger or meets the thresholds for notification.

These changes apply to all proceedings initiated by the CNMC from 30 June 2023. 

Global Competition Law

706. Proceedings before the CNMC

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Les notions juridiques connexes

706. Proceedings before the CNMC

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