EU & Competition annual report
business opportunities for lawyers in the future . He adds that some clients are recruiting competition lawyers for their in-house teams to “ reinforce competition compliance and culture .”
Law firms are providing “ more preemptive advice ” for clients in relation to competition law , says Ashurst partner Rafael Baena . He adds that it is difficult to tell if there has been an improvement in “ competition culture ” within companies because the CNMC has been less active .
There is greater awareness of competition law among clients which is good news for competition lawyers , says one partner . However , lawyers report that “ behavioural work ” is in decline due to the decline in the CNMC ’ s activity . Yet more clients are now investing in competition compliance programmes , particularly due to the risk of facing a criminal investigation , according to Baena .
The role of external lawyers in helping to ensure clients do not infringe employment law is still very important , says Ward . “ Specialist outside counsel have a breadth of [ competition law ] expertise that in-house lawyers will rarely have ,” he says . Ward believes lawyers in private practice
What are currently the biggest opportunities for law firms in the area of EU and Competition ?
“ In Spain , the CNMC ( Comisión Nacional de los Mercados y la Competencia ) is not only maintaining its scrutiny of cartels – including bid-rigging – but is also expected to set up an economic intelligence unit , with the aim of using statistic tools to unveil collusive behaviour .” Carlos Vérgez , head of competition , Broseta
“ Participation in international transactions continues to be an opportunity , as we see consolidation continues to occur in several sectors of activity . Depending on the proactivity of competition authorities and their effect on deterrence , competition compliance programmes may also be important , especially when coupled with antifraud and anti-corruption programmes .” Margarida Rosado da Fonseca , of counsel , DLA Piper ABBC
“ Two sectors that can offer great opportunities include public sector contracting and e-commerce . In relation to e-commerce , the activity of online platforms will be a huge focus – the European Commission has proposed an amendment to merger regulations as e-commerce is now eluding these controls .” José Ayllón , partner , Ecija
The transposition of the damages directive constitutes a very important opportunity , not only for competition lawyers , but also for litigators , with whom it is necessary to work side by side . It is essential to disseminate what this regulation means , to make people aware of the new possibilities regarding the right to claim .” Jorge Álvarez , partner , Ontier
“ The development of new digital business models , such as the collaborative economy , and the globalisation of demand and supply through e-commerce , is a great challenge and a great opportunity .” Carlos Hernández Rivera , partner , RCD – Rousaud Costas Duran
“ Financial markets require highly sophisticated and rigorous advice . Demand in this area is increasing . Prevention and compliance are also expanding areas of work .” Roberto Vallina Hoset , senior associate , Roca Junyent
“ Private enforcement of competition law will become an opportunity with the projected implementation of the EU directive on private enforcement ( Directive 2014 / 104 / EU ) into Portuguese law .” Cláudia Fernandes Martins , senior managing associate , Macedo Vitorino & Associados are better placed to benchmark clients ’ competition compliance programmes against industry best practice and adds that although smaller organisations specialised in compliance programmes have emerged , full-service law firms have a “ significant advantage due to their access to colleagues specialised in data protection , white collar crime and employment law ”.
Some competition-related legal work is becoming more commoditised , says Martínez . However , he adds that clients also require more sophisticated advice where the impact of technology is limited and a lot of partner involvement is required as it concerns the interpretation of human behaviour . In general , clients want more information on legal costs and more efficiency from a technological perspective , Baena says . He adds : “ Competition law is not a commodity , a lot of expertise is really important to avoid risks .”
Portugal : Greater enforcement In Portugal , the main development in 2017 from a competition perspective has been the Portuguese Competition Authority ( PCA ) significantly increasing its enforcement efforts , says MLGTS partner Joaquim Vieira Peres . “ Throughout the year , the authority carried out extended dawn raids in the retail distribution , insurance , driving schools and rail maintenance sector ,” he explains . However , the authority ’ s actions have been controversial , Vieira Peres adds . “ It imposed a fine of € 38 million on energy company EDP and supermarket operator Continente for entering into a joint promotional campaign , which the authority viewed as including a horizontal non-compete agreement similar to a cartel ,” he says . “ The theory of harm of the case is very questionable and the decision has been appealed , but the authority ’ s views on joint promotional agreements – which are similar to agency agreements – and on the concept of ‘ potential competition ’ are cause for concern .”
PLMJ partner Ricardo Oliveira echoes the view that the Portuguese competition authority ’ s enforcement
44 • IBERIAN LAWYER • November / December 2017 www . iberianlawyer . com