Year-in-review - Spanish competition law in 2021

In addition, the relationship between the sale of football broadcasting rights and competition law has been a hot topic this year and the ECN+ Directive has been finally implemented in Spain.

1. Focus on bid-rigging cartels

The CNMC has focused its resources this year on tackling irregularities in public tenders, resulting in heavy fines imposed on multiple companies active in different sectors in Spain for their participation in alleged bid-rigging cartels.

• In May, the CNMC fined 22 consulting firms and a number of their managers a total of EUR 6.3 million for creating two different cartels in which they exchanged sensitive commercial information and coordinated their strategy to avoid competition in tenders to provide consulting services offered by Spanish public entities.
• In August, the CNMC fined 12 companies EUR 61.2 million for their participation in a cartel for altering the tenders for road maintenance and operation services offered by the Spanish Ministry of Transport. The companies would have periodically established the criteria for coordinating the economic bids to be submitted in the tenders, affecting 70% of contracts awarded between 2014 and 2018.
• In September, the CNMC imposed fines totalling EUR 160,000 on four document management services providers for exchanging sensitive information and allegedly submitting fictitious bids to Spanish public administrations requiring those services.
• Lastly, in October, the CNMC fined several companies with a total of up to EUR 127.3 for their alleged participation in a cartel consisting of sharing tenders for the supply, installation, set-up and maintenance of security systems, traffic control and management, and railway communications for the conventional and high-speed railway networks in Spain.

2. CNMC grants for the first time a fine reduction for the implementation of compliance measures

In June 2020, the CNMC published its Antitrust Compliance Programs Guidelines, which include the basic criteria that the CNMC deems relevant for these programs to be effective, with the purpose of assisting companies in Spain in their efforts to develop and implement compliance programs.

In relation to the above-mentioned consulting firms’ cartel sanctioned in May this year, the CNMC applied for the first time a 10% reduction to the fine imposed on a company because of the implementation of effective compliance measures.

For further information on this case and, in particular, on the compliance measures assessed by the CNMC, please refer to our article in Competition Edge June 2021.

3. Big tech in the spotlight in Spain

Big tech companies have increasingly come under the scrutiny from national competition authorities and the European Commission. This year, the CNMC has also targeted the tech giants.

On the one hand, in March, the CNMC agreed to put an end to the infringement proceedings brought against Google and El Tenedor in November 2018 for an alleged conduct related to Google’s search engine and Google Maps’ online restaurant reservation system prohibited by Articles 1 and 2 of the Spanish Competition Act (“LDC”). As discussed in our article in Competitive Edge March 2021, no fine was finally imposed on Google given that no infringement was proved.

On the other hand, in July, the CNMC opened formal proceedings against Amazon and Apple for an alleged anticompetitive agreement that could be restricting competition in the markets of online sale of electronic products, and in the market of the provision of marketing services to third party retailers through marketplaces in Spain. For further information on this investigation, please refer to our article in Competitive Edge July 2021.

4. Football broadcasting rights: a new chapter

The sale and use of broadcasting rights football rights in Spain has always been in the spotlight due to frequent controversies between the Spanish Football Federation, the national professional football league (“LaLiga”) and the football clubs. In 2021, further developments have occurred related to competition law enforcement.

As discussed in our article in Competitive Edge November 2021, in October, the CNMC published a report in which it analyses the conditions proposed by LaLiga to sell the broadcasting rights for future seasons of the National Football League’s first and second division in Spain.

LaLiga introduced in its latest tender proposal, the possibility of extending the duration of the contracts either for three, four or five years. However, the CNMC considered that the duration of more than three years would not be compatible with EU Competition law, following precedents of the European Commission. Despite this disparity of criteria, LaLiga decided to finally allow operators to bid for the acquisition of rights for more than three seasons.

5. Increase in the adoption of commitment decisions by the CNMC

In 2021, the CNMC has achieved a record by putting an end to different infringement proceedings based on commitments a total of five times in very different markets, such as agricultural, film distribution and retail banking (since 2015 the CNMC has only adopted these kinds of decisions in a total of 14 cases).

For further information on commitments decisions in Spain, please refer to our article in Competitive Edge October 2021.

6. Implementation of the ECN+ Directive in Spain

In April this year, the Spanish Royal Decree-Law 7/2021 entered into force, which modifies the LDC due to the transposition of the Directive 2019/1, known as the “ECN+ Directive”.

Although Spanish regulations already included most of the provision contained in the ECN+ Directive, this amendment has brought significant changes, especially regarding: (i) the relationship between the CNMC with the European Competition Network, (ii) the upper fine limits that can be imposed due to antitrust infringements, (iii) CNMC’s investigation powers, (iv) the safeguards available for companies involved in infringement proceedings, and (v) the leniency program. It should be noted that additional modifications may still be taken.

Further detailed information regarding the implementation of the ECN+ Directive in Spain was addressed in our article in Competitive Edge May 2021.

For more information, please contact Candela Sotés.