EU & Competition Annual Report
technology sector, says Oriol Armengol,
EU & Competition Partner at Pérez-Llorca,
and highlights the international nature of
antitrust enforcement in global markets.
The economic crisis has also highlighted
the assessment of State Aid measures
by the Commission to ensure that such
measures comply with EU rules, and a State
Aid reform programme is underway, say
lawyers, earmarking public funds to help
industries and companies in need.
“
The publication in mid-2013 of the
so-called ‘package of compensation of
damages’ is finally intended to unlock a
2005 initiative, and the most important
step made by the Commission in the
field of Competition.
Luis Berenguer, Broseta Abogados
Increasing inspections
Investigation bodies across the Iberian Peninsula have
been extremely active. In Spain, there have been recent
significant changes in inspection practices and there
is controversy surrounding how theses take place and
breaches of legal privilege, says José María JiménezLaiglesia, Head of EU & Competition at DLA Piper Spain.
“This is unfortunate as we should have already a settled
practice.”
The powers of inspection are interpreted by the
Competition Authority in a very broad manner, adds
says Jaime Pérez-Bustamante, Competition Partner at
Linklaters Madrid. “The rights of defence of the companies
and the privacy concerns of their employees are not given
sufficient weight and consequently many dawn raids are
being challenged in the courts.”
Clients are increasingly interested in the powers of the
Competition Authority from an IT perspective, particularly
in light of the massive use of laptops, mobile phones,
tablets, etc, as well as tools such as internet messaging,
cloud services and so on, says Álvaro Pascual, Head of
Competition, Regulation and Trade at Herbert Smith
Freehills Spain. It is becoming increasingly difficult for
advisers to confidently oppose the authority trying to
access certain categories of information, particularly given
the blurred boundaries between professional and personal
use of IT.
The PCA is also focusing on exchange of sensitive
information and materials particularly in the banking
sector, as evidenced by the biggest dawn raid ever in
Portugal, carried out on 15 banks in early 2013 to obtain
evidence of any exchange of commercially sensitive
information between the banks involved, says Luís
Silva Morais, Founding Partner at EU, Competition and
Economic Regulation boutique Luís Silva Morais &
Associados. “Curiously it is a matter in which the PCA
seems to be aligned with the Commission investigations
on rate manipulation by banks, and it is bound to be a test
case for the PCA.”
The ‘Super’ Regulator
Undoubtedly the biggest change in Spain has been
the creation of the National Markets and Competition
Commission (CNMC), merging the CNC with the
energy, telecommunications, railways regulation and
mail services bodies.
www.iberianlawyer.com
”
No one in the EU has made such a radical change
to their regulators – perhaps with the exception of
the Netherlands – and the change seems to have
been prompted by a desire to avoid clashes between
competition and regulatory authorities, explains Pedro
Callol, Head of EU & Competition at Roca Junyent.
“In particular, the CNC and the Telecoms NRA were
at loggerheads in the framework of the Abertis pricesqueeze case in the media signal transmission market.”
The reaction of the Spanish antitrust community has
been rather negative, say lawyers. Even the Commission
manifested its concerns about the moves. However,
by contrast with telecoms or the energy national
regulators, the EU Commission has no legal standing
to say how the national competition authorities should
be organised, explains Rafael Allendesalazar , EU &
Competition Partner at Martínez Lage, Allendesalazar &
Brokelmann. “They can say they don’t like it but that is
about as far as it goes.”
The general consensus among antitrust lawyers is
that the CNC was working fine and, although there
were natural discrepancies from a legal perspective, the
system did not need to go through a complete overhaul.
“What we want from the CNMC is to ensure that we
have at least the level of service that we had before,”
says José Antonio de la Calle, Managing Partner of
DelaCalle Abogados. “When we speak with clients the
thing they hate most is uncertainty. We need to manage
their expectations – and establishing confidence in the
new system at the moment is a challenge.”
One of the problems is that there are issues that
have not been regulated, explains Begoña Barrantes,
Senior Associate in EU & Competition at Clifford
Chance, Spain, such as the way that the regulatory and
competition chambers of the Council will interact in
certain instances when exercising competences which
corresponded to the regulators and the competition
authority under the previous regime.
Going forward, the key is to ensure the preservation
of the 2007 Competition Act, stresses José María
Jiménez-Laiglesia, Head of EU & Competition at DLA
Piper Spain. “It is a good instrument, it works and gives
us and our clients a predictable framework.”
However, leaving policy decisions aside, there are
technical provisions within the Competition Act that
do need to be addressed, in particular those concerning
coordination of regulatory and competition law
November / December 2013 • IBERIAN LAWYER • 43