EU & Competition e-report 2017 EU Competition | Page 2

EU & Competition annual report
Lack of bite
Competition enforcement in
Spain has weakened due to
uncertainty surrounding the
country’s competition authority,
though it has increased
significantly in Portugal –
meanwhile, the EU directive
on antitrust damages will make
clients less likely to apply for
leniency

Competition enforcement in Spain
has suffered due to the problems
endured by the Spanish competition
authority. It is now proposed
that the National Commission on
Markets and Competition (CNMC)
be split into two entities in an
effort to make it function better.
While this is seen as a positive step,
partly because the commission is
inviting opinions on how it can
improve the way it operates, it has
also had negative repercussions –
the uncertainty surrounding the
organisation has meant that its
competition enforcement function
has not performed as well as would
have been expected. However, the
EU Directive on antitrust damages
claims will generate opportunities
for lawyers. Meanwhile, the
Portuguese Competition Authority
has significantly stepped up its
enforcement efforts and carried out a
significant amount of dawn raids in
the last year.
Jaime Pérez-Bustamante, partner
at Linklaters and a member of
the firm’s partnership board,
highlights the implementation
of the EU Directive on antitrust
damages claims as one of the key
developments in the area of EU
and competition law in the last
12 months. Meanwhile, Pérez-
Bustamante also highlights the
long-awaited Court of Justice long
decision in the Intel case, which
annulled the fine of €1.1 billion
imposed to the company in an
abuse of dominance case. He adds:
“This is the first time that the court
has required an effects-based
analysis in an exclusivity rebate
case.” It is anticipated that the
court’s decision could embolden
companies like Google and Apple
which have received significant
fines from the EU. Google was
42 • IBERIAN LAWYER • November / December 2017
fined €2.4 billion after a seven-
year investigation concluded the
company had abused its internet
search monopoly. Meanwhile, in
2016, the Irish government was
ordered to claw back €12 billion
in unpaid taxes from Apple, after
the EU Commission ruled that the
company’s tax arrangements in
Ireland constituted illegal state aid.
Another significant recent
development, according to Pérez-
Bustamante, was the Spanish
National Commission on Markets
and Competition (CNMC)
taking the step of announcing a
new policy of imposing fines on
individuals involved in competition
infringements in cartel cases.
However, some lawyers argue that
the fines on individuals (which go
up to a maximum of €60,000) may
be an insufficient deterrent.
DLA Piper partner José María
Jiménez-Laiglesia says proposals
to split the CNMC into two
separate bodies – one focusing on
competition and one concentrating
on regulating markets – has
undermined the organisation as
it has restricted its enforcement
capability and says that there has
been a recognition that “mistakes
were made [when six separate
entities were merged to form the
CNMC] and the CNMC has been
losing cases”. Casto González-
Páramo Rodríguez, partner at
Hogan Lovells, said the CNMC
has finally opened up and allowed
competition law experts to give
their opinion on how to “improve
the application of competition
law”. He adds: “This is a
remarkable change, there have
been public consultations on
topics such as merger control
procedure and the leniency
programme – this has increased
interaction with the CNMC.”
There now seems to be a
“breath of fresh air” at the CNMC,
according to Oriol Armengol,
partner at Pérez-Llorca. “There
are new board members who
will hopefully help to smooth
over internal conflicts that
have adversely affected the
institution’s work and prestige,”
he says. Armengol adds that the
implementation of the EU Directive
on antitrust damages claims will
reduce the incentive for clients to
ask for leniency. “There could be a
decrease in leniency applications,
which may result in fewer cartels
being discovered,” he says.
The view that the EU Directive
could reduce the number of clients
seeking leniency is echoed by Bird
& Bird partner Patricia Liñán.
“Leniency is at risk,” she says.
Liñán adds that there has been a
decrease in legal work related to
anti-competitive behaviour, partly
because of the decrease in the
CNMC’s activity. However, she
adds that the cost to companies
of infringing competition law
is increasing and therefore it is
essential that companies invest in
compliance.
Another significant pending
issue in the field of competition
law is the CNMC’s consultation
regarding guidelines on imposing
fines, says Antonio Martínez,
partner at Allen & Overy. “The 2009
CNMC guidelines on imposing
fines were set aside in 2015, and
now comments are being invited
on new guidelines, in which the
principle of proportionality needs
to be taken into account.”
Cuatrecasas partner Andrew
Ward says one concern for clients
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