King of the Road
Spain: King of the Road
This month the new Spanish competition authority completes its first year of operations and it is in the spotlight. The Comisión Nacional de los Mercados y la Competencia (CNMC) started its engine on 7 October 2013, as only the third national competition authority since Spain joined the EU in 1986. Appropriately, the CNMC was the result of an eight-party merger of four existing regulators; three regulators that had still to be created; and indeed the former competition authority. It now has the competences of the National Energy Commission (CNE); the Telecommunications Market Commission (CMT); the Railway Regulatory Committee (CRF); the National Commission for the Postal Sector (CNSP); the Commission for the Economic Regulation of Airports; the National Gaming Commission; and the State Council for Audiovisual Media. And in the driving seat the former National Competition Commission’s (CNC) team.
The CNMC kept the previous two-tier structure of an investigatory branch, now known as the Competition Directorate, and in the driving seat the Council as decision-making body. However, it is clearly adamant to draw a fresh departure line between the CNC and its own policy, always referring to the former as being ‘extinct’.
Four of the five pre-existing authorities had officially stated their criticism of the first merger prototype and so had the traffic wardens at the Body of European Regulators for Electronic Communications (BEREC) and even at the European Commission. Undeterred by these headlights on full beam, the CNMC kept a keen eye on the main road ahead. While the extinct authority had still fined the motorised world’s predecessor trade, horse breeding (SNC/0030/13 Criadores de Caballos), the CNMC kick-started formal proceedings against as many as 151 car dealers, conversely closing a pending case against the Spanish motoring federation for allegedly imposing one tyre brand for tests (S/0470/13 RFEDA-3), as previously had been parallel investigations for allegedly imposing one provider for issuing compliance certificates for racing cars (S/0468/13 Real Federación Española de Automovilismo -2) and one insurance company (S/0401/12 Real Federación Española de Automovilismo), respectively.
Its extinct predecessor had paved the ground for multitudinous investigations with its case against 53 road maintenance companies [S/0226/10 Licitaciones carreteras, which gave rise to the judgment commented in Campezo Obras y Servicios, SL and ors, Final NCA decision, OCL 029 (ES 2009), 28th December 2009 also keeping an eye on price-fixing among users such as transport companies (Case S/0397/12 Transportes Madrid, fining 19 undertakings).
The CNMC kept nose-tailing road users such as provincial driving schools (Case S/0497/13 Autoescuelas Guadalajara, investigating 12 undertakings) or Majorcan coach companies (inspecting 11 undertakings last April) without disregarding other markets off-road. Indeed, the CNMC levied roughly 55 million euro fines in its first year to date. This wealth is safe from overpricing after the extinct CNC cleared two security transport companies of price-fixing allegations (Case S/0398/12 Loomis-Prosegur). Just in case, however, the CNMC has opened formal proceedings against 27 refrigerated transport companies (Case S/0454/13 Transporte frogorífico).
The CNMC also had to find its way through another multi-party case started by its predecessor, which fined five undertakings for one aspect of the infringement (S/0380/11 Coches de alquiler): the State-owned airport management body had forced 30 car rental companies nationwide to provide sensitive commercial information and had then made such information available to all players on the market. This case (S/0404/12 AENA) raises interesting issues of ne bis in idem; the notion of single and continuous infringement; and State intervention, which will warrant a Headnote as soon as the Court of Appeals has had its say. In the end the CNMC fined only 19 of these rental companies yet did still not manage to stay clear of dense traffic.
Indeed, further to inspecting the premises of a cartel service provider in the tracks of AC Treuhand (cf. the EU General Court’s judgment in AC Treuhand v Commission, Case T–99/04,  ECR II-1501, as discussed in Bellamy & Child 7e), the CNMC opened formal proceedings against car dealers of as many as 6 manufacturers. The CNMC referred its case against 4 dealers to Madrid’s regional competition authority (Case S/0485/13 Concesionarios Nissan) and geared up to real speed in the parallel cases, starting formal proceedings against ever more dealerships in successive opening decisions. Still running to date are 11 Toyota dealers; 11 Hyundai dealers; 8 Opel dealers; 14 Land Rover dealers; and Seat/Audi/VW leading the field with a as many as 107 investigated dealers (Case S/0471/13).
Do the road signs read mene tekel? We shall see how the CNMC will manage this self-induced traffic jam, with at least one secondary route blocked by another pending investigation of five car manufacturers (Case S/0482/13 Fabricantes automóviles). So far, the Competition Directorate already missed its one-year deadline to submit a proposal to the CNMC Council pursuant to Article 28(4) of the Spanish procedural regulation. This is most exceptional yet of no legal relevance, as investigations are time-barred only after the overall eighteen-month decision deadline set out in Article 36(1) of the Spanish Competition Act. However, the Competition Directorate is push bumping into the Council’s time for an in-depth review and a well-founded decision. We shall report on any output of EU relevance from the CNMC’s carburettor.
Stefan Rating, Rating Legis SLP