EU & Competition Annual Report
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Courts and council
Lawyers praise the former CNC’s more recent approach to
competition enforcement. And in its last months the CNC
opened a lot of investigations, but they are still pending
before the new Regulator – and the clock is ticking, says
Marcos Araujo, Head of EU & Competition at Garrigues,
Spain. “Hopefully the appointment of Eduardo Prieto as
Director of Competition will speed things up and ensure
there is no further backlog.”
The increase in the level of fines in recent years has been
astonishing, both at national and EU level, say lawyers.
Fines imposed by the Spanish competition authority
for cartel infringements increased from €57m in 2007 to
more than €454m in 2013. But at the same time, says Iñigo
Igartua Arregui at Gómez-Acebo & Pombo, Madrid, the
enhanced prosecution of cartels in Spain is constantly
being questioned before Courts.
The Supreme Court has reviewed, frequently reduced
and annulled many of the penalties imposed by the CNC,
with lawyers estimating around 50 percent of appeals
against fining decisions as partially or entirely allowed.
“We have seen some judicial review moves by the Spanish
Audiencia Nacional that are very relevant, in particular it
has changed the way in which the amount of fines are
determined,” says Jaime Folguera, Head of Competition at
Uría Menéndez, “which is a courageous move”.
The appointment of a new Council has also raised some
concern. “Unfortunately, with the appointment many feel
we lost an opportunity to have made a real difference to
their approach and include people with day-to-day legal
and real world experience in the field of Competition
Law,” says Rafael Baena, Head of EU and Competition at
Ashurst, Spain.
Given the lack of experience of part of the new Council,
explains Casto González-Páramo, Head of Competition at
Hogan Lovells, Madrid, it can probably be expected that, at
least in the beginning, its decisions will mostly follow the
proposals of the Directorate of Investigation.
But the new Council is made up of entirely new people
and this may be a good thing as it could bring a fresh
perspective and approach to certain improvable aspects
of the decision phase, says Cani Fernández, Head of EU &
Competition at Cuatrecasas Gonçalves Pereira, for example
the use of hearings before the Council, something that was
much needed.
The new Law
harmonised the
domestic regime
with that of
the EU, created
a specialised
Competition
Court, as well as
the conditions
for stronger
competition
enforcement. The
PCA now has a complete set of tools, at the same level
as that of the most advanced authorities in the world,
says Gonçalo Anastácio, Head of EU & Competition at
SRS Advogados. “The challenges of the past year have
prompted a clear statement at political level that the
country needs more efficient enforcement.” And both
the Government and Troika are pushing clear political
messages addressing the lack of competition.
“The creation of a cartel unit is also a clear message that
the Authorities are focusing on compliance,” according
to Ricardo Bordalo Junqueiro, Of Counsel in EU &
Competition at Cuatrecasas Gonçalves Pereira, Lisbon.
However, with only just over a year in place, the
practical impact of the new law is still difficult to assess,
says Adelaide Moura, Managing Partner at A.M. Moura
Advogados. “So far, it seems that the changes in the new
law and especially the reinforced powers of the PCA
have not produced significant additional
changes or constraints to companies.”
2013 has therefore been a very
important year to analyse decisions
of the new Court and the PCA in to
be able to identify the trends in terms
of law interpretation and application,
says Sofia Ferreira Enriquez, Head of EU
and Competition at Raposo Bernardo. And of
the few relevant decisions available to date,
the trend has been for the court to confirm the important
conviction decisions of the PCA, say lawyers.
The PCA has also published a set of guidelines
providing more transparency on the application of
its terms, and last year disclosed its three priorities:
to optimise its work on competition enforcement and
advocacy, to contribute to effective application of the new
Competition Act, and to bolster its capacity to act, explains
Joana Gomes dos Santos, Associate in the Competition
Department at Caiado Guerreiro & Associados.
Since then the PCA has been very active with cases
spanning from ex officio merger control, to the application
of fines for abuse of dominant position, anti-cartel
investigations and effective enforcement and also sector
regulatory policy advisory. “We believe that this increased
active and intervening role has played an important part
in preventing, or reducing the number of, abuses and
anticompetitive practices that would otherwise have
flourished in this crisis environment,” says Ricardo
Henriques, Senior Associate in Competition at pbbr.
All change
Portugal also has a new Competition Council to contend
with, as well as a Competition Law that has only been in
force for a year. Lawyers say that so far the country has
lacked a competition culture, however these two moves are
a step in the right direction.
New leadership
The PCA also recently appointed a new Council, and
lawyers are optimistic. Many of the problems Portugal
used to have with competition law were that the PCA’s
interpret of the previous Competition Act sometimes failed
at court. “The reason the past Council had no results is that
The old Council concentrated on reorganisation and
restructuring, and succeeded in keeping a good Merger
Control Department, however it had a poor enforcement
record. The new Council is expected to take a proactive
stance, especially in relation to enforcement.
Carlos Botelho Moniz, Morais Leitão, Galvão Teles,
Soares da Silva & Associados
jurisdiction, says Patricia Liñán Hernández, EU &
Competition Partner at CMS Albiñana & Suárez de Lezo.
44 • IBERIAN LAWYER • November / December 2013
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