Royal Decree Law 5/2023 of 29th June was passed on 28th June, and while it regulates many different areas, it also introduces important  procedural modifications in the area of Competition.

Specifically the Anti-trust Act 15/2007 of 3rd July is modified with two different objectives:

  1. Transposition of the ECN+ Directive.

Royal Decree Law 5/2023 introduces some modifications which remained pending from the previous transposition of the ECN+ Directive (Royal Decree Law 7/2021), especially in so far as the role to be adopted by the Commission on Markets and Competition (in Spanish, Comisión Nacional de los Mercados y la Competencia – hereinafter “CNMC”) in the implementation of the Digital Market Act (DMA) together with the European Commission (EC).

The ECN, European Competition Network is the cooperation network shared by the national authorities for the preservation of fair competition (ANC) of the member states of the European Union. It’s functioning is regulated in Directive 2019/1 or the ECN+ Directive.

Pursuant to the modification of article 18 of the Anti-trust Act (hereinafter “ATA”), the CNMC is entrusted with greater competences in the investigation of infringements committed on Spanish Territory in relation to Digital Markets:

In particular, the CNMC may now require information from the EC and other ANC during the course of their investigations and they may also carry out inspections within the framework of classified information.

However, the EC maintains exclusive competence over the application of the Digital Markets Act. Thus, if the EC initiates a procedure with the objective of investigating the same facts of the case, the CNMC shall cease its investigation and shall submit all information to the EC.

  1. Improvements in the functioning of the CNMC.

First of all, the maximum term for some infringements of fair competition are modified with the objective of facilitating, for the interested parties, the processing thereof  with the CNMC.

  • In sanctioning procedures: the term is extended from 18 to 24 months, for passing and notifying the resolution; and from 15 days to 1 month to submit arguments in the statement of facts and the proposed resolution from the Directorate for Competition.
  • With regard to concentration control procedures, the term of the second phase is extended from 2 to 3 months.
  • In concentration operations, the maximum term for settling prior consultations as provided for in article 55.2 of the ATA shall be 1 month as from the receipt thereof.
  • Likewise, it is necessary for the maximum term of 3 months in procedures for precautionary measures to run from the date on which they were applied for

Likewise, the sanction procedure is simplified.

  • The report that the Directorate for Competition was previously required to send to the Board of the CNMC has been eliminated.
  • The contents which needed to be included in the proposal of the resolution on the sanction proceedings has been regulated: (i) the proven facts and their exact legal classification, (ii) identification of the infringement, (iii) responsible persons, (iv) proposed sanction and (v) assessment of the evidence presented.

Finally, it should be pointed out that, although this reform intends to simplify some procedures and adjust Spanish regulations to the ECN+ Directive, it must be taken into account that the majority of the new developments are procedural in nature.

Some more substantial modifications are missing, which were foreseen in previous initiatives and whose processing has been suspended due to the early calling of general elections on 23rd July 2023. Specifically, we may highlight the draft bill with the purpose of creating an “Independent Administrative Authority in Defence of Financial Clients”.

Another new aspect, which in the end was not included in the text, is the introduction of the settlement procedure; in accordance with said procedure, investigated companies would receive a reduced fine in exchange for accepting responsibility in the investigated facts (between ten and fifteen per cent in total, depending on the circumstances), this possibility may speed up the procedures and reduce litigation in this type of procedures without the need to employ as many resources.

Entry into force

The modifications in the area of competition contained in the Royal Decree-Ley 5/2023 entered into force the day following the publication thereof in the Official State Gazette on 30th June 2023.

Procedures in the anti-trust field initiated before 30th June 2023 shall be governed by the prior regulations pursuant to the ninth Transitional Provision.

 

 

Julio González

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

15th September 2023