Spain: One step ahead of supervision - The CNMC reviews standards and best practices to address competition compliance

The Spanish competition authority (“CNMC”) has recently concluded its public consultation on the update of its "Antitrust Compliance Programmes Guidelines", since its publication on 10 June 2020.

As part of this consultation, the CNMC has acknowledged the positive impact that the 2020 Guidelines have had on promoting competition compliance programmes. The Guidelines' criteria have become established as a reference standard for evaluating the effectiveness of such programmes. However, over the last few years, a series of regulatory developments and transformations in the business and economic landscape have made it advisable to review and make some modifications to the document. These include the full implementation of the ECN+ Directive and the transposition of the Whistleblowing Directive into the Spanish legal system, a key player in the future of early infringement detection and internal compliance practices.

The consultation process aims to gather input and feedback from a wide range of stakeholders on several areas, as the following:

• The relationship between implementing an effective compliance programme and the potential exemption from the prohibition to contract with public administrations, which is increasingly being enforced by the CNMC, with its latest decision in this regard being issued earlier this month, concerning an abuse of dominant position within the wholesale market for automotive fuels, in relation to the pricing and discount policies of certain companies (see CNMC file S/0011/22).
• Requirements for effective compliance programmes in relation to quantifying financial sanctions and its relationship with the potential reduction of sanctions for active collaboration outside leniency programmes.
• Recommendations for SMEs on adopting effective compliance programmes, showing an ambitious scope of application for compliance measures, and its relevance for any sort of business, regardless of size and regardless of the sector in which they operate.

• The growing implementation of new technological tools such as digitalisation, mass data analysis and AI, and the risks and opportunities they present, as these may pose serious risks for the commission of competition infringements.

   

Core compliance criteria remain critical

The original 2020 Guidelines established seven key evaluation criteria for effective compliance programmes: (i) involvement of top management; (ii) training sessions; (iii) implementation of reporting channels; (iv) independence of the compliance officer; (v) risk mapping exercises; (vi) procedure for managing reports; and (vii) establishment of disciplinary systems.

These fundamentals are expected to remain central to any updates of the upcoming guidelines, with enhanced guidance based on the CNMC’s experience and relevant case law, with a particular focus on the newly awakened direct prohibition on contracting with the public sector, where effective compliance tools can serve as a true tiebreaker due to its potential to act as a full exemption.

In addressing the prevention and detection of unlawful conduct, the CNMC has maintained a consistent position: the mere implementation of a compliance programme does not automatically justify mitigating a company's liability when determining fines. However, the authority has recognised that the pre-existence of an effective compliance programme, its demonstrable improvement, or even its subsequent implementation may be considered as a mitigating circumstance on a case-by-case basis.

Looking ahead

The results of the consultation and contributions submitted will be published through the CNMC's website in due course. 

Companies operating in Spain should monitor these developments closely and seize the opportunity to demonstrate their resilience in compliance matters, by engaging with the updated Guidelines and refining their programmes accordingly. 

Updated Guidelines could have direct implications for sanction mitigation, public procurement eligibility and corporate risk management strategies. Therefore, businesses should strengthen their internal compliance culture and signal a genuine commitment to collaboration with competition authorities, which may prove decisive when facing regulatory scrutiny.

If you need more information or further guidance in this area, please contact Candela Sotés and Pablo Rodríguez Sousa.

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