The new National Commission on Markets and Competition merges into a single authority the functions and powers previously exercised by the now defunct National Competition Commission and the regulators of some of the country's most strategic economic sectors. Its stated aim is to focus on promoting competition by developing ex ante regulation and by enforcing antitrust rules.
To date, the application of the Spanish leniency programme has been consistent with the European Commission's practice. However, certain aspects of its practical application were unclear and thus created confusion among applicants. A new competition authority notice on the programme aims to increase clarity, certainty and legal security in this regard.
More than a year after the government announced that the National Competition Commission would merge with up to six other sector regulators to create a new institution – the National Commission on Markets and Competition – an act implementing this change has been approved by Congress. However, it has been argued that the efficiencies envisaged by the act could have been obtained without unifying the regulators' functions.
The retail petrol sector has been in the sights of the National Competition Commission (NCC) for the past five years. Following numerous public warnings from the NCC, the government recently decided to introduce new legislation aimed at tackling the alleged lack of effective competition in the sector. However, questions remain as to whether the new measures are the best way to achieve this goal.
The Competition Authority's concerns regarding the competitiveness of the food sector have finally prompted the government to trigger reforms in the legal framework. The enactment of new legislation and the authority's determination to continue promoting effective competition in the food production sector will doubtless have a positive impact on a sector that is not as competitive as it potentially could be.
Refusal to supply has been a controversial and ambiguous concept in competition law for many years. In a recent decision to reject a complaint, the National Competition Commission has clarified its view and provided helpful guidance on the application of the concept.
The National Competition Commission recently found two associations of transport companies responsible for having cartelized the market for the land transport of containers to and from the port of Barcelona. The authority imposed the maximum fine possible (10% of annual turnover) on each association - a level which is unprecedented in Spain.
The council of the National Competition Commission recently dismissed a complaint by telecommunications company Jazztel regarding an alleged abuse by the incumbent Telefonica of its dominant position in the wholesale market for internet broadband access. The decision departed from those previously taken by the commission's Enquiry Division and the telecommunications regulatory authority.
The council of the National Competition Commission recently imposed an overall fine of €24 million on four regional savings banks from the Basque Country and Navarre for an infringement of Article 1 of the Competition Act. The council refused to consider each practice as a different infringement, but instead decided to regard the activities as a single complex cartel.
The Tribunal for the Defence of Competition issued several decisions on individual exemptions just before the new Law for the Defence of Competition entered into force on September 1 2007. The decisions show significant differences concerning the duration of the exemptions.
Parliament has recently passed a new Competition Act, which will enter into force on September 1 2007. The act introduces a number of significant reforms, bringing the Spanish competition system into line with EU rules. Among other things, the act establishes a new independent body, the National Competition Commission, which will replace the Service for the Defence of Competition and the Court for the Defence of Competition.
The Audiencia Nacional has recently annulled a decision imposing a €57 million fine on Telefónica for an alleged abuse of a dominant position. The Audiencia Nacional determined that the practices carried out by Telefónica were acts of unfair competition, which may be penalized only where they seriously distort competition and affect the public interest.
The Service for the Defence of Competition (SDC), the three Spanish card system companies and a number of trade associations have recently signed a termination agreement that settled the proceedings initiated by the SDC against the card system companies for fixing interchange fees collectively. This is only the second time that the SDC has approved a termination agreement.
The Supreme Court has annulled a decision of the Court for the Defence of Competition imposing a record fine on the Spanish incumbent telecommunications operator Telefónica for engaging in practices amounting to abuse of a dominant position. The court concluded that the content of the advertising campaign launched by Telefónica could not be considered anti-competitive.
The Tribunal for the Defence of Competition has imposed fines on five film distributors and on the Spanish Association of Distribution Undertakings for infringement of Article 1 of the Competition Law. The tribunal held that the similarities of the distributors' commercial policies could be the result only of a tacit coordination and not of the characteristics of the market.
In May 2006 Cadbury Schweppes was penalized by the Catalan Court for the Defence of Competition for concluding agreements that were deemed to be restrictive of competition in five local markets for the distribution of non-cola flavoured carbonated soft drinks. This case clearly shows the determination of the regional authorities to implement competition law in cases affecting local markets.
Once approved by the legislative chambers, the recently published draft Antitrust Law shall introduce significant institutional, substantive and procedural changes to the antitrust regime. The draft aims to introduce changes that are in line with the applicable EU competition law. It is expected to enter into force on January 1 2007.
A commercial court has ordered Telefónica to compensate Conduit, a provider of telephone directory services, for the losses resulting from Telefónica's abuse of its dominant position in the market. The court held that Telefónica had granted discriminatory access to its client database. Such access was considered to be an essential input for the provision of telephone directory services.
The Court for the Defence of Competition has imposed a €900,000 fine on Correos (the largest postal operator in Spain) for infringement of competition rules. The court found that Correos had abused its dominant position in the postal services market by applying discriminatory prices to certain publishers. This is the fourth fine to be imposed on Correos in the past two years.
A judgment issued on June 7 2005 by a Madrid court of first instance represents the most relevant example of the application of Article 13(2) of the Antitrust Act. The court ordered the defendant to pay compensation for gains lost by the plaintiff as a result of the defendant's abuse of a dominant position. This constitutes a landmark decision on the possibility of filing antitrust damages actions in Spain.