Incoming update of the Spanish competition legislation

On 31 July 2020 the Spanish Government released its proposal to amend the Spanish Competition Act. The background is the implementation of EU Directive ECN+, but Government has taken the opportunity to introduce other changes. The text is up for comments until early September and will then follow the final legislative steps until reaches its final form, so changes are still possible. In the meantime, you can read below a quick recap of the key changes:

Some mergers that meet the turnover thresholds may escape from scrutiny if they have a very low impact on the market, measured in market share (combined market share below 15% and acquirer’s individual market share below 50% where no overlaps exist).

Enhanced cooperation with the European Commission and other competition authorities, including sharing confidential information or authorizing other officials to assist in the sphere of dawn-raids.

Reinforcement of investigation powers to simply interviews, collection of evidence and conducting raids at private homes.

The much anticipated possibility of settling cases (with a discount on the fine up to 15%), which also comes with the option for the authority not to pursue every complaint, for strategic reasons or otherwise.

Expanded duration of infringement procedures (up to 24 months from the previous 18) and Phase-II mergers (3 months instead of 2). But this comes with expanded time to reply to Statements of Facts and Objections (1 month for each, instead of 15 days). Note that time-barring of infringements will not run if a procedure is taking place before the European Commission.

All anticompetitive agreements (essentially article 101 TFUE) and abuses (article 102 TFUE) are now very serious infringements, and therefore punishable with fines of up to 10% of the turnover. The text further clarifies that it is worldwide turnover, not Spanish, something that has generated multiple appeals in these past years.

And, finally, fines for individuals (directors, etc.) can now go up to EUR400,000 (up from EUR60,000).

So an ambitious reform that covers many topics demanded by the sector, be it companies or authorities, in search of a better and more effective competition enforcement in Spain. But possibly a lost opportunity to address other topics such as rights of defence in pre-investigation phases and fact-seeking exercises or budgetary independence. Let’s see what the final text looks like and how satisfied all parties end up.