Spain's Antitrust Crusade: Twenty Years of Regulation and Competition Protection
Spain's Competition Authority Shifts Enforcement Strategy
Spain's competition authority, the Comisión Nacional de los Mercados y la Competencia (CNMC), has experienced a significant shift in its cartel enforcement strategy over the past few years. This change, which has resulted in a decline in the number of investigations and fines, is a deliberate recalibration towards fewer but more robust cartel cases to maintain deterrence effectively.
Since 2016, the CNMC has moved away from an aggressive, broad-based approach, conducting fewer investigations and concluding fewer cases annually. This shift is evident in the drop of cartel decisions from 6 in 2021 to just 2 each in 2022 and 2024. However, the focus remains on high-impact, well-evidenced cases with heavy fines, preserving deterrence through case intensity rather than volume.
One of the key factors contributing to this change is the CNMC's focus on quality over quantity. Instead of pursuing many cases, the authority concentrates on a small number of cases with greater evidentiary robustness and higher penalties per case. This strategic adjustment is partly due to the CNMC assimilating lessons from prior rulings and refining enforcement practices to enhance resilience on appeal.
The CNMC's shift in enforcement style is also influenced by broader European trends in enforcement. The European Union's approach to uncovering cartels is gradually pivoting from public enforcement to private litigation, with fewer leniency applications undermining the primary source of cartel intelligence.
The decline in cartel enforcement in Spain mirrors a broader downward spiral at the EU level. Total fines imposed by the European Commission in 2023 fell to their lowest since at least 2005. This decline cannot be explained solely by market dynamics and is due to renewed attention from the judiciary, which has overturned several landmark cartel decisions, citing insufficient evidence and procedural flaws.
Despite these challenges, the CNMC continues to adapt and evolve. It has shifted its focus towards larger platforms, crafting behavioural remedies, and favouring sectors where a single anti-competitive practice can reverberate across a broad network of small and medium-sized enterprises (SMEs).
To further strengthen its capacity, the CNMC has launched initiatives such as the 'Brava' programme, designed to enhance its digital forensics and advanced data analysis capabilities. However, the effectiveness of these initiatives beyond public tenders remains questionable.
Restoring the CNMC's capacity requires reinforcing its independence, ensuring stable funding, and giving it the tools to plan strategically across political cycles. Establishing a robust and transparent settlement mechanism would represent a pivotal reform in national antitrust procedure, aligning domestic enforcement with well-established approaches in the United States and the European Union. Such a mechanism could streamline case resolution, reduce litigation costs, and increase the number of concluded cases, providing a consensual pathway to resolution and preserving judicial resources and parties' due process rights.
- The Comisión Nacional de los Mercados y la Competencia (CNMC), Spain's competition authority, has transitioned from an aggressive enforcement strategy to focusing on fewer, but more impactful, cartel cases.
- The CNMC prioritizes quality over quantity, concentrating on cases with greater evidentiary strength and heftier penalties.
- This shift in strategy is partly due to the CNMC refining its practices to enhance resilience on appeal and assimilating lessons from prior rulings.
- European Union's approach to uncovering cartels is shifting towards private litigation, with fewer leniency applications affecting the primary source of cartel intelligence.
- Total fines imposed by the European Commission in 2023 have declined to their lowest since at least 2005 due to renewed attention from the judiciary and overturned landmark cartel decisions.
- The CNMC has adapted by focusing on larger platforms, crafting behavioral remedies, and favoring sectors where anti-competitive practices can have broad impacts on small and medium-sized enterprises (SMEs).
- To strengthen its capacity, the CNMC has initiated programs like 'Brava' to enhance digital forensics and advanced data analysis capabilities, although the effectiveness of these initiatives beyond public tenders is uncertain.
- Restoring the CNMC's capacity requires reinforcing its independence, ensuring stable funding, and giving it the tools to plan strategically across political cycles.
- A robust and transparent settlement mechanism could represent a pivotal reform in national antitrust procedure, aligning domestic enforcement with established approaches in the United States and the European Union.
- Such a mechanism could streamline case resolution, reduce litigation costs, and increase the number of concluded cases, providing a consensual pathway to resolution while preserving judicial resources and parties' due process rights.
- This shift in the CNMC's enforcement strategy signals the need for a broader discussion on international diversity in legal practice, regulatory reforms, and the role of corporate law firms (LLPs) in cross-border counsel services, insights, finance, and investing for businesses.
