EU & Competition e-report 2017 EU Competition | Page 7

EU & Competition annual report
‘Unclear competition legislation’ poses challenge for
lawyers
Law firms find it difficult to provide conclusive advice to clients due to the many ‘grey areas’ in
competition law – however, such rules ensure companies are held to account and stop market abuse
Competition laws often lack clarity and
make it difficult for lawyers to give
clients clear guidance, says Nuno Ruiz,
partner at Vieira de Almeida in Lisbon.
“Companies like competition rules like
a turkey likes Christmas,” says Ruiz. The
biggest issue relates to the uncertainty
caused by such laws, due to a lot of “grey
areas” that make it difficult for law firms
to provide conclusive advice – in turn,
this makes it difficult for companies to
ensure they are compliant, he adds.
Companies that operate at a global
level need to adapt in order to be
compliant with EU and national
completion rules, Ruiz explains.
Competition policies in the US differ
greatly from those within the European
Union, for example. Therefore companies
operating in Europe face major challenges,
which generates opportunities for law
firms to engage with those companies and
guide them, Ruiz says.
Competition rules do have benefits as
they mean companies are held to account
and they also stop cartels and market
abuses, according to Ruiz. That said, Ruiz
argues that there is currently a shortage
of suitably experienced judges in national
courts who are able to handle complex
cases and, as a result, lawyers could face
difficulties defending their clients. He
adds that there may also be instances in
which judges in civil cases hold views
that differ from those of the competition
authorities.
Competition laws may also lead
to a “significant amount of private
enforcement in national courts”, Ruiz
says. This will particularly be the case
when competition authorities dismiss
complaints due to “lack of policy interest
or insufficient resources to deal with
them”, he adds. This environment
provides a major opportunity for
young lawyers to enter the market and
specialise in competition law, as well as a
chance for judges to get acquainted with
the enforcement of competition rules,
Ruiz says, “especially given the increased
importance it will have within the
business world in the coming years”.
Nuno Ruiz
Fines and penalties for anticompetitive practices set
to increase
The fines and penalties imposed on
companies, their management and
their directors for anticompetitive
practices are expected to increase so
it is vital that companies ensure they
are not breaching competition laws,
says Ángel Valdés, partner at Lupicinio
International Law Firm in Barcelona.
“Compliance [with competition law]
is a philosophy to be followed and it is
very important for companies operating
in Spain to get the correct advice on
competition matters,” Valdés explains.
“Spanish companies are introducing
policies and proceedings to ensure
both the legal entity and employees
comply with the last amendment of
the Criminal Code in relation to legal
entities, but it is also convenient if they
apply similar high compliance standards
in order to avoid anticompetitive
practices by the employees or the legal
entity,” says Valdés.
He continues: “Last year was also the
www.iberianlawyer.com
first time that the Spanish competition
authority imposed penalties, not only
on companies but also on the managers
and members of the board of directors.”
Valdés adds: “It has also been intimated
that these penalties are to be increased,
so this is definitely a worrying matter
for companies.” As a result, competition
lawyers are increasingly reviewing
clients’ operations in order to engage all
the relevant departments with a view
to taking action. “It is not just about
reviewing compliance from a legal
perspective – understanding the relation
of all the departments to compliance and
offering the right advice and training is
very important too,” Valdés says.
“It’s a procedure that involves visiting
the company’s legal department to find
out the main point of risk,” he explains.
“Then, having established the scope of
the analysis, we look at computers and
documentation, before prepa ring a list of
the relevant people to be interviewed.”
Ángel Valdés
November / December 2017 • IBERIAN LAWYER • 47