Contributed By Allen & Overy LLP
Merger control is governed in Spain mainly by the following legislation:
Although the Spanish Competition Authority (Comisión Nacional de los Mercados y de la Competencia, or CNMC) is not bound by soft law issued by the European Commission (eg, Ancillary Restraint Notice, Assessment of Horizontal Merger Notice, etc), it usually follows it for interpretative purposes of internal merger control rules.
Apart from merger control rules, foreign investments are only subject to notification before the General Directorate of International Trade and Investments (Dirección General de Comercio Internacional e Inversiones) once the investment has been made. Change of control and free movements of capital are liberalised in Spain.
In addition, there are some sectors in which foreign investments are subject to specific sector regulation, for instance in the case of gambling; certain energy assets; media (ie, television and radio); air transportation; manufacturing, distribution and trade of arms and explosives for civil uses; and individual telecommunications licences.
Please also note that there is an ex ante mandatory declaration that applies to foreign investments carried out by investors based in countries that qualify as tax havens. The scope of this ex ante declaration covers all investments from tax havens, whatever the type of investment and its amount, unless it is expressly excluded (ie, investments in negotiable securities and foreign investments that do not exceed 50% of the share capital of the Spanish companies that receive those investments).
The CNMC was created in 2013 and is the result of merging in a single body the former competition authority (ie, the Comisión Nacional de la Competencia) and six sector regulators, with supervisory and monitoring functions in the sectors of electronic communications, energy, postal, audio-visual communication, airport fees and railway.
The CNMC is a public law entity with its own legal personality and full public and private capacity, attached to the Ministry of Economy, but which carries out its activity with organic and functional autonomy, and with full independence from other public administrations.
As regards merger control, there are two bodies within the CNMC dealing with merger control proceedings: (i) the Directorate of Competition (which is in charge of handling merger control proceedings) and (ii) the Council of the CNMC (which is the decision-making body). This structure guarantees a functional separation between the handling of cases by the Directorate of Competition and the body in charge of decision-making, the Council.
In this regard, once the notification of a concentration has been filed with the CNMC, the Directorate of Competition creates a file and prepares a report and a decision proposal that is submitted to the Council of the CNMC, the body in charge of taking the final decision. When the transaction is related to a regulated sector, the Directorate of Competition may consult one of three regulatory Directorates of the CNMC (eg, the Directorate of Telecommunications and Audio-visual sector, the Directorate of Energy or the Directorate of Transport and Postal sector, as applicable) before a decision is issued. This consultation does not stop the clock and is carried out within the statutory review periods.
Lastly, the Council of the CNMC takes its final decision based on the information provided by the Directorate of Competition (and one of the other regulatory Directorates of the CNMC, where applicable) and it can clear a concentration without commitments, it can clear a concentration subject to the fulfilment of the commitments submitted by the notifying party or the conditions it can impose, or it can prohibit a transaction (please refer to 3.8 Review Process).
In the last two scenarios (ie, where the clearance of the concentration is conditioned to the fulfilment of some commitments/conditions or when the transaction is prohibited), the Spanish Council of Ministers can intervene in the merger control proceedings, after a formal request to do so by the Spanish Minister of Economy. In this scenario, the Council of Ministers can confirm the decision adopted by the Council of the CNMC or it may modify the Council’s decision on the grounds of general interest other than competition law (please refer to 4.6 Non-competition Issues). Since the entering into force of the current Spanish Competition Act in 2007, the Council of Ministers has only corrected the CNMC on one occasion in merger control proceedings (in order to allegedly safeguard media pluralism, see Case C/0432/12, Antena 3/La Sexta).
It is mandatory to notify a concentration to the CNMC, without exception, when any of the thresholds set forth in Article 8.1, letters a) and b) of the Spanish Competition Act is met (please refer to 2.5 Jurisdictional Thresholds).
In the event that a transaction meets one of the Spanish jurisdictional thresholds and the notifying party does not notify it to the CNMC, the CNMC may require it to do so within a 20-day deadline. Failure to notify within such a deadline after having received the request by the CNMC qualifies as (minor) infringement of the Spanish Competition Act subject to fines of up to 1% of the total turnover achieved in the previous year by the infringing party (ie, the notifying party).
In the event that a transaction is implemented before having been notified to the CNMC or, once notified, before having been cleared by it (ie, 'gun jumping'), the infringing party may be fined up to 5% of its total turnover achieved in the previous year.
The most recent gun-jumping fines in Spain have been those imposed in 2017 in Case SNC/DC/0074/16 Consenur and in 2015 in Case SNC/DC/0038/15 Masmovil.
Finally, whether the notifying party breaches or contravenes the commitments or conditions imposed by the CNMC to clear a concentration, it may be fined up to 10% of its total turnover in the previous year to the imposition of the fine.
Recent fines in Spain for not respecting commitments/conditions have been those imposed in 2015 in Case SNC/0039/15 Atresmedia (where a fine amounting to EUR2.8 million was levied) and in 2013 in Case SNC/0024/12 Mediaset (where a fine amounting to EUR15.6 million was levied).
In addition to the fines just described, the CNMC may also impose periodic penalties of up to EUR12,000 per day in order to compel the infringing party to (i) undo a merger that has been prohibited by the CNMC or (ii) comply with the commitments or conditions contained in the decisions of the CNMC or in the agreements of the Council of Ministers.
All these fines are made public, as the CNMC publishes all of its decisions (in non-confidential version) on its website.
In Spain, similarly to what is stated in the EU Merger Regulation, an economic concentration shall be deemed to arise when a stable change in the control of the whole or part of one or more undertakings takes place. In particular, this change may result from:
As will be explained in further detail below, the change of control on a lasting basis can also be the result of the acquisition of shares or assets, but also of other legal means (such as entering into a shareholders agreement, the modification of the articles of association, etc) or factual situations (which leads to a de facto control).
That said, the Spanish Competition Act envisages some specific circumstances in which a transaction that falls within one of the previous cases shall not be considered to be a concentration:
For merger control purposes, in Spain, control shall be constituted by contracts, rights or any other means that confer the possibility of exercising decisive influence over an undertaking or part of it and, in particular, by (i) the ownership or the right to use all or part of the assets of an undertaking; or (ii) contracts, rights or any other means that confer decisive influence on the composition, voting or decisions of the governing body of the undertaking.
In particular, there shall be presumed to be control over a company when an individual or another company:
The interpretation that the CNMC usually makes of the Spanish Competition Act tends to follow the principles of EU merger control rules for the definition of 'control'. In this regard, the possibility for a company to approve or veto the budget, the business plan or the appointment/dismissal of senior management, or the possibility of determining/vetoing major investments are considered strategic decisions that could confer control over the said company.
Conversely, veto rights that are granted to minority shareholders in order to protect their financial interests as investors do not confer control. In any event, the assessment of whether particular veto rights can confer control is something that should be assessed on a case-by-case basis.
The Spanish Competition Act at Article 8.1 establishes that a concentration that does not have an “EU dimension” under the EU Merger Regulation shall be notified before the CNMC when (i) the combined turnover achieved in Spain by the undertakings concerned is in excess of EUR240 million and the individual turnover achieved in Spain by at least two of the undertakings concerned is in excess of EUR60 million (Turnover Threshold), or (ii) as a result of the transaction, a share equal to or higher than 30% of a relevant product market in Spain (or in a geographic market within Spain) is acquired or increased (Market Share Threshold).
Note that there exists a 'de minimis' exception by means of which no notification is required where the Market Share Threshold is met but the following two cumulative conditions are also met: (i) the turnover achieved in Spain by the target company or assets to be acquired is below EUR10 million and (ii) the individual or combined market share of the undertakings concerned does not reach 50% in any affected market in Spain (or in a narrower geographic market defined within it).
For the assessment of the de minimis exemption, it must be noted that the CNMC interprets the concept of affected market not only covering those markets where the target is active, but also those that are vertically related. This effectively means that if the target company holds in a market in Spain (or in a narrower geographic market within it) a share of 30% or more and the acquirer holds a share of 50% or more in a vertically related market, the transaction could not benefit from the de minimis exemption and a filing would be triggered.
Apart from the above, there are no special jurisdictional thresholds applicable to particular sectors.
In Spain there exists a formal consultation procedure that allows resorting to the CNMC for advice if it is not clear whether the jurisdictional thresholds are met or whether a transaction leads to a concentration. Unfortunately, this procedure is not used frequently since the CNMC is not subject to any deadline for issuing its opinion and the parties usually opt for notifying ad cautelam in these circumstances.
The date that has to be used to assess whether jurisdictional thresholds are met is the date of the signing of the binding legal agreement that gave rise to the concentration, the date of announcement of a public bid or the date of the notification, whichever is earliest.
For the assessment of the Market Share Threshold, the sum of the market shares held by the undertaking concerned shall be considered. In this regard, there will be an addition of market share for the acquirer, even if it previously controlled the target, when the nature of this control is modified (for example, a change from joint to sole control). Similarly, there is an addition of market share when a joint venture is created and the parent companies contribute all or part of their business to the newly created entity.
As regards the acquisition of market share, note that the fact that the target company or the targeted assets hold a share in Spain (or in a narrower geographic market within it, if applicable) in excess of the Market Share Threshold (ie, 30% or 50% if the de minimis exemption was to apply), would be by itself sufficient to trigger a filing to the CNMC, even if the notifying party (eg, the acquirer) does not hold any share in the same activities in Spain.
In relation to the Turnover Threshold, the assessment shall include turnovers from products sold and services provided to companies or consumers in Spain after deducting the amount of rebates and other reductions of sales, value-added tax and other taxes directly related to the turnover (ie, 'net' turnover). As a general rule, the turnover to be taken into account is the turnover of the latest completed and audited financial year to the date of the transaction. As regards turnover allocation rules, the CNMC follows the same principles provided in the EU Merger Regulation and in the European Commission’s consolidated jurisdictional notice.
When the turnover is expressed in foreign currencies, it shall be converted into euros on the basis of the annual average exchange rates published by the European Central Bank.
The entities that are relevant for the purposes of calculating the jurisdictional thresholds in Spain are the 'undertakings concerned', which are generally the undertaking(s) that acquire exclusive or joint control and the undertaking over which control is acquired. On the contrary, the seller’s turnover or market share is not relevant for calculating whether a transaction meets the jurisdictional thresholds in Spain.
For calculating the jurisdictional thresholds, the undertaking(s) acquiring control shall include (i) the company that participates in the transaction, (ii) the companies controlled (on an exclusive or a joint basis) by the company acquiring control and (iii) the companies that (exclusively or jointly) control the company acquiring control. As regards the target entity, it has to be taken into account the entity to be acquired and the companies directly or indirectly controlled by it (assuming that all of them are within the scope of the transaction).
If there are changes within the perimeter of the undertakings concerned after the latest completed and audited annual accounts have been issued (for example, any divestment or a new acquisition), the changes in the turnover derived from those changes should be taken into account. Similarly, when the target company or the assets to be acquired do not refer to the whole activity of the seller, only the turnover of the acquired business unit shall be taken into account.
Every transaction that meets the Market Share Threshold, the Turnover Threshold or both is subject to notification, irrespective of the fact that parties do not have a physical presence (eg, assets) in Spain. Therefore, foreign-to-foreign transactions are subject to the Spanish merger control rules and may trigger the notification requirement if any of the Spanish thresholds are met.
In relation to the Market Share Threshold, it is important to note that it is met when the parties reach the relevant threshold in Spain (ie, 30% or 50%), irrespective of whether the geographic market definition for the assessment on the substance of the transaction could be broader.
In order to meet the Market Share Threshold, it is necessary that the acquiring party acquires or increases a share equal to or higher than 30% (except when de minimis exception is applicable, in which case the relevant threshold would be 50%).
The Market Share Threshold will be met when, in the absence of any overlap in the activities where the target is active in Spain, the target company alone holds a share above the applicable threshold. However, the Market Share Threshold will not be met if the acquiring entity holds in Spain a market share above the applicable threshold but the target entity does not have a presence in those same activities in Spain.
The Market Share Threshold will also be met if the combined market share of the acquiring entity and the target are equal to or higher than the applicable threshold.
Please also refer to 2.6 Calculations of Jurisdictional Thresholds.
As mentioned in 2.3 Types of Transactions, the Spanish Competition Act considers a concentration the creation of a joint venture and, more generally, the acquisition of joint control over an existing company when it performs on a lasting basis the functions of an autonomous economic entity.
Article 4.2.b) of the Regulation of the Defence of Competition provides that in the event of the creation of a full-function joint venture, there will be acquisition of market share when the parent companies contribute all or part of its business to the newly created full-function joint venture.
If a transaction does not meet the Spanish thresholds, the CNMC has no authority to investigate the transaction. This should be understood without prejudice to the possibility that the CNMC carries out any investigation that it deems necessary to check whether a transaction does indeed meet the statutory merger control thresholds provided in the Spanish Competition Act. In this respect, the CNMC could issue requests for information to the potential notifying party or to the target and, at least theoretically, carry out inspections.
On the contrary, every transaction that meets the jurisdictional thresholds can be investigated by the CNMC during the two following years after its 'implementation' period, after which the possibility of imposing fines for gun jumping would be considered to be time barred (please see Cases SNC/0004/09, Adeslas and R/AJ/0269/14, Mevion).
As a general rule, a transaction that meets any of the Spanish merger control thresholds cannot be implemented until clearance from the CNMC has been obtained (expressly or tacitly). Consequently, if a transaction triggers a merger control filing to the CNMC, there is a bar on closing.
That said, pursuant to the notifying party’s request, the Council of the CNMC may lift the suspension obligation after considering, among other factors, the damage that maintaining the standstill obligation would cause the undertakings concerned and the implications that lifting the suspension obligation would have for free competition. Lifting of the suspension obligation may be subject to the fulfilment of conditions and obligations that guarantee the efficacy of the decision that is finally adopted on the substance of the case.
Traditionally the CNMC has been reluctant to lift the suspension obligation and has only granted a waiver in very exceptional circumstances. The two most recent cases in which, to this firm's knowledge, the CNMC has granted a suspension of the standstill obligation have been C/0493/13 Cope/Vocento/Punto Radio and C/0802/16 Daimler/Hailo/Mytaxi/Negocio Hailo.
As mentioned in 2.2 Failure to Notify, the implementation of a transaction triggering a filing in Spain before its clearance by the CNMC is considered a 'serious' infringement of the Spanish Competition Act, which can lead to a fine of up to 5% of the total turnover of the infringing party in the previous year to the imposition of the fine.
Since the entering into force of the Spanish Competition Act in 2007, the CNMC and its predecessors have sanctioned a non-negligible number of companies because of failure to notify a transaction. For instance, in Case SNC/0022/12, Verifone/Hypercom, the CNMC sanctioned the notifying party EUR286,000 for implementing the transaction before obtaining clearance from the CNMC.
Apart from the possibility of requesting the lifting of the suspension obligation mentioned in 2.12 Requirement for Clearance Before Implementation, the only instance in which the suspension obligation would not be considered to be infringed relates to public takeover bids related to securities listed on the Spanish stock exchange markets that lead to a concentration.
In these cases, the parties can start acquiring shares in the context of the takeover bid provided that (i) the public takeover bid is notified to the CNMC within a period of five days as from filing it with the Spanish securities exchange regulator (Comisión Nacional del Mercado de Valores, or CNMV) and that (ii) the acquiring party does not exercise the voting rights attached to the shares acquired or exercise them with the prior consent of the CNMC and only to safeguard the integral value of the investment.
As concerns the possibility of obtaining a waiver to the standstill obligation, please refer to 2.12 Requirement for Clearance Before Implementation and 2.14 Exceptions to Suspensive Effect.
As regards the possibility of carving out Spanish businesses in the context of global transactions, it is possible to carry out carve-outs in Spain and implement the transaction in the other countries. However, before carrying out such a strategy, it is highly advisable to discuss with the CNMC and seek its green light to do so. For instance, in Case C/0802/16 Daimler/Hailo/Mytaxi/Negocio Hailo, the CNMC permitted the parties (by partially lifting the suspension obligation), and subject to a number of conditions, to close the transaction in other jurisdictions before receiving clearance in Spain.
Any concentration that meets the jurisdictional thresholds in Spain must be cleared by the CNMC before its implementation.
The Spanish Competition Act does not foresee any specific deadline for the notification of these transactions being made, except in the case of public takeover bids related to securities listed on the Spanish stock exchange markets that lead to a concentration. In these instances, the transaction must be notified to the CNMC within five days of the application for the bid’s authorisation being submitted to the CNMV.
Please also note that if the CNMC requires the notifying party to notify a transaction that meets the jurisdictional thresholds and has not been notified previously, it will give the parties a deadline of 20 days for doing so.
Notifications may be done in Spain as from the time there is a project or agreement leading to a concentration. In this regard, the concept of 'agreement' differs depending on the kind of concentration that takes place.
The practice of the CNMC in relation to the possibility of notifying transactions on the basis of non-definitive documents is to assess on a case-by-case basis whether such notification meets the criteria above. There are examples of cases where the CNMC has accepted the formal notification of a transaction on the basis of memorandums of understanding or letters of intent, provided that they contained the main elements of a project of concentrations (such as final structure of the transaction, price, timeline, etc). However, in other instances, even if the CNMC has been willing to start pre-notification contacts on the basis of non-definitive agreements/documents, it has required its final executed version for accepting the formal notification.
The notifying party shall pay a filing fee before notifying formally to the CNMC. In fact, evidence of the payment of the filing fee must be attached to the notification form as an annex.
The amount of the filing fee is linked to the overall turnover achieved in Spain by the undertakings concerned. In this regard, the following filing fees for merger control proceedings are currently applicable:
In the case that the transaction is notified through a short form (please refer to 3.11 Accelerated Procedure), a fixed fee of EUR1,545.45 will be applied at present. However, if the CNMC finally decides that the parties must file the ordinary form instead of the short form, those parties will have to submit the appropriate supplementary charge.
Note that the above figures may change from time to time.
The Spanish Competition Act provides that the following party(ies) are responsible for notifying to the CNMC:
The party responsible for filing can do it by itself or through a representative duly empowered. In this regard, a power of attorney must be issued that allows the representatives to act on behalf of the notifying party. The CNMC does not require that this power of attorney is notarised or apostilled. However, the power of attorney must be in Spanish or a sworn translation into Spanish must be provided.
The filing must be submitted, in Spanish, using the forms (standard or short forms) attached as annexes to the Regulation on the Defence of Competition (please refer to 3.11 Accelerated Procedure to see in which circumstances a short form can be used).
The information to be provided by the parties is quite similar to that information to be provided on the Form CO (whether standard or short) under the EU Merger Regulation, which includes information on the parties, the description of the transaction (including any potential ancillary restraint) and the description of the previous control structure of the notifying party and the target. In relation to the relevant market, the parties must provide a definition of the relevant product and geographic markets concerned by the concentration, information on the structure of the relevant markets (eg, market share estimates), structure of the demand, barriers to entry, R&D expenditure and explain whether there exists any co-operative or vertical aspect arising from the transaction. In the case that a short form applies, the level of detail of information to be provided is significantly alleviated.
During pre-notification contacts, which are not mandatory but are highly recommendable in practice, the CNMC will check whether the level of detail required is met by the notifying party or whether additional information has to be provided (please refer to 3.9 Pre-notification Discussions with Authorities).
In addition to filling in the notification form, the notifying party must also submit other relevant documents, such as the agreements giving rise to the transaction, the financial statements of the parties for the most recent and audited financial year, evidence of the payment of the filing fee and documents prepared by or for the decision-making body of the undertakings concerned assessing the transaction, among others. The notifying party may submit any other document it considers relevant, such as the power of attorney if the filing is submitted through a representative.
In the event that the original agreement is not drafted in Spanish, the CNMC shall be provided with a (private) translation into Spanish. The CNMC may be in some instances flexible and allow the translation of only those sections that are relevant for the merger control review. However, the practice in this respect is not completely consistent.
Although pre-notification contacts are not mandatory, in practice, they are highly recommended and are usual practices in Spain since among other benefits they reduce the likelihood of a notification being considered incomplete.
In the event that the CNMC considers that a pre-notification draft is not complete, the notifying party will receive one or several informal requests for information for supplementing the draft (please refer to 3.9 Pre-notification Discussions with Authorities).
Note that if, upon formal notification, the CNMC considers that the filing is not complete, it will issue a formal request to the notifying party so that it supplements the information of the draft filing with the information requested by the CNMC, within a ten working day deadline. If a complete response is not submitted within the said ten working days, the notification will be considered withdrawn.
The Spanish Competition Act considers a 'minor' infringement supplying to the CNMC incomplete, incorrect or misleading information. As a consequence, the CNMC may impose penalties of up to 1% of the total turnover of the infringing party in the year preceding the imposition of the fine.
In addition to the potential pre-notification contacts (please refer to 3.9 Pre-notification Discussions with Authorities), in Spain there are two phases in the review process of the CNMC.
Phase I starts with the formal submission of the notification form by the notifying party to the Directorate of Competition of the CNMC.
The Council of the CNMC has one calendar month (from date to date) after the formal notification of the transaction to (i) unconditionally authorise the concentration; (ii) subordinate its authorisation to the fulfilment of certain commitments proposed by the notifying party; (iii) decide to initiate the Phase II review period, when it considers that the concentration may hinder the maintenance of effective competition; (iv) decide on the referral of the transaction to the European Commission; or (v) order proceedings to be closed due to the withdrawal of the notification by the notifying party. Please note that if the notifying party submits commitments in Phase I, the maximum review period would be extended by an additional ten working days.
If the transaction raises doubts as to whether it could significantly impede the maintenance of effective competition, the CNMC will open an extended Phase II review period.
The Phase II review period is two calendar months as from the moment at which the Council of the CNMC agrees the opening of Phase II. This period will be extended by 15 additional working days if the notifying party submits commitments in Phase II.
Please note that, in practice, Phase II will usually take much longer than two calendar months since the clock is usually stopped for a number of reasons (eg, issuance of request for information, etc).
For instance, the only Phase II that took place during 2018, Case C/966/18, Quirón/Clínica Santa Cristina, lasted for around seven calendar months.
This phase begins with the drafting of a brief note on the concentration by the Directorate of Competition. This note is shared with any third party that may be affected by the concentration in order that they can request to intervene if so wished and submit their comments on it within ten working days. Taking into account these potential comments and the in-depth investigation carried out by the Directorate of Competition, a Statement of Objections (SO) would be issued in which the substantive concerns that arise from the transaction would be summarised. The notifying party (along with interested third parties) would have the possibility of responding to the SO. The notifying party may also request a hearing before the Council of the CNMC.
After the appropriate statutory steps are taken, the Council will take its final decision whereby it may (i) authorise the concentration with or without conditions or commitments, (ii) prohibit the concentration or (iii) order proceedings to be closed due to the withdrawal of the parties.
In the event that the CNMC prohibits the concentration or clears it subject to commitments or conditions, the Spanish Council of Ministers can intervene in the merging control procedure, after a formal request for doing so by the Spanish Minister of Economy (please refer to 1.3 Enforcement Authorities).
In Spain it is not mandatory to engage in pre-notification contacts. Nevertheless, it is highly advisable and in practice customary to enter into pre-notification contacts with the Directorate of Competition of the CNMC before submitting a formal notification. The aim of these contacts is to inform the authority on the intention of the notifying party to notify the concentration and to confirm with the authority that the information included in the draft filing is, in its view, sufficient or whether additional information has to be provided.
Note that all steps during these pre-notification contacts are treated confidentially and that no information about the transaction is published, at this stage, on the website of the CNMC.
The CNMC may send information requests to the parties during the Phase I or Phase II review processes if it considers that it needs more information to carry out its analysis. These requests will usually stop the clock unless the notifying party negotiates with the CNMC in order for the request for information not to suspend the deadline if responded to swiftly.
In Spain there exists the possibility to notify a concentration through a short form, which alleviates the quantity of information to be submitted to the CNMC, in cases that do not entail significant competition concerns. In particular, a short form could be used when:
The substantive test is intended to determine the extent to which the concentration is likely to impair the competitive structure of the existing market. In this regard, the CNMC shall assess, ex ante, whether a concentration will likely impede the maintenance of effective competition in all or part of the Spanish market.
If there is evidence that effective competition will not be impeded in all or part of the Spanish market, CNMC will clear the transaction. When carrying out its assessment, the CNMC will also weigh up the efficiencies resulting from the transaction against the potential impediment of competition brought about by it.
In particular, the CNMC shall adopt its decision by taking into account, among others, the following elements:
For the purpose of a Spanish merger control filing using a standard form, a 'relevant' market (which would correspond to the concept of 'affected' market under a standard Form CO) consists of the product market in Spain or in a narrower geographic area in Spain (if applicable) where (i) two or more of the undertakings concerned are engaged in business activities in the same product market and their combined market shares are equal to or higher than 15% and/or (ii) the undertakings concerned have an individual or combined market share of 25% or more in a product market that is upstream or downstream of a product market in which any other undertaking concerned is active at a Spanish level or in a geographic market defined within it.
For each 'relevant' market, as explained in 3.5 Information Included in a Filing, the notifying party shall provide information on the market shares estimates, the structure of the demand and supply, whether there exist entry barriers or whether there are co-operative or vertical aspects arising from the concentration, among others.
In the absence of its own precedents, although the CNMC is not bound by previous decisions of the European Commission or of other national competition authorities from other member states, it may rely on precedents of the Commission mainly but also other authorities, in particular for market definitions purposes.
The merger control assessment of the CNMC is holistic and covers all potential angles of merger control review.
In this respect the CNMC will carry out an assessment of whether in the context of a horizontal merger a transaction will give rise to non-coordinated (ie, unilateral) or co-ordinated effects. In the context of a non-horizontal merger, the CNMC will also assess the potential vertical and conglomerate effects of mergers.
When carrying out its assessment, the CNMC will usually resort to the same type of assessment that the European Commission provides in its Guidelines on the assessment of horizontal mergers (Official Journal C 31, 05/02/2004) and its Guidelines on the assessment of non-horizontal mergers (Official Journal C 265 of 18/10/2008).
The CNMC will take into account the economic efficiencies derived from the concentration and, in particular, the contribution that the concentration may make to improving the production or commercialisation of products and services, and to business competitiveness, and the extent to which these efficiencies are transferred to the customer; in particular, in the form of increased or better supply and lower prices.
In order for the efficiencies to be taken into account by the CNMC, it will be necessary to show that (i) they are inherent to the concentration and cannot be achieved by other means, (ii) the efficiencies can be accredited and (iii) the efficiencies benefit consumers.
As explained in 1.3 Enforcement Authorities and 3.8 Review Process, when the Council of the CNMC prohibits a concentration or clears it subject to conditions or commitments at the end of Phase II, the Spanish Minister of Economic Affairs may refer the transaction to the Council of Ministers so that it is assessed on the basis of grounds of general interest other than competition policy.
The concept of 'general interest' is interpreted broadly and covers, among other interests, (i) defence and national security, (ii) protection of public security or public health, (iii) free movement of goods and services within the national territory, (iv) environmental protection, (v) promotion of technological R&D or (vi) guarantee of an adequate maintenance of the objectives of sector regulation.
Since the entering into force of the Spanish Competition Act in 2007, the Council of Ministers has only intervened on one occasion, in Case C/0432/12 Antena 3/La Sexta.
In so far as the creation of a full-function joint venture or the acquisition of joint control over an existing entity (which also has to enjoy full functionality) is subject to the merger control of the CNMC (please refer to 2.3 Types of Transactions), the CNMC will assess whether the transaction would result in a co-ordination of the competitive behaviour of undertakings that continue being independent (ie, the parent companies).
As explained in 3.8 Review Process, the Council of the CNMC has the ability to prohibit concentrations when they threaten to impede the maintenance of effective competition in Spain or in a narrower geographic market within it. The CNMC also has the ability to subordinate its clearance to the fulfilment of certain commitments proposed by the notifying party or conditions imposed by the CNMC if said transaction gives rise to serious competition concerns (the Remedies).
If the Remedies imposed on the notifying parties in the final decision are not fulfilled, the CNMC shall resolve on the imposition of fines and on the adoption of other compulsory measures set out by law in order to restore competition in the market.
Note that among these measures the CNMC could request a transaction to be undone if it was implemented.
The notifying party may propose commitments (whether in Phase I or in Phase II) that solve the obstacles for the maintenance of effective competition that may result from a concentration and have been identified by the CNMC.
When commitments are proposed by the notifying party, the maximum deadlines for resolving the merger control proceedings shall be extended by ten working days in Phase I and 15 working days in Phase II, respectively.
The commitments offered would normally be market tested by the CNMC. The Directorate of Competition would usually stop the clock during the market test of these commitments.
Remedies are not infrequent in Spanish merger control proceedings. For instance, out of 88 concentrations cleared by the CNMC during 2018, four of them were approved with commitments during Phase I: (i) Case C/0911/17 Servired/Sistema 4B/EURO 6000, (ii) C/0922/18 Naviera Armas/Transmdediterránea, (iii) Case C/0945/18 Talleres Alegría/Duro Felguera Rail and (iv) Case C/0980/18 BP Petrocorner. Please also note that in the sole Phase II investigation of the CNMC in 2018, Case C/966/18 Quirón/Clínica Santa Cristina, the transaction was also cleared subject to commitments.
For the Council of the CNMC to consider acceptable the commitments submitted by the notifying party, they must be sufficient to resolve the competition concerns resulting from the transaction that the CNMC may have identified.
Whether the commitments are sufficient to resolve the competition concerns identified by the CNMC is something that must be considered on a case-by-case basis.
The Council of the CNMC is willing to accept structural and behavioural commitments provided that they resolve the competition concerns identified during the review of the transaction.
In the case of structural remedies, the parties must propose a realistic and sufficiently detailed divestment that permits its correct monitoring. These structural remedies may entail the divestment or disposal of certain tangible or intangible assets, the sale or transfer of production assets, the elimination of shareholdings or structural links of the controlling shareholders, among others. For example, in Case C/0980/18 BP Petrocorner, related to the acquisition of several petrol stations by BP and cleared in December 2018, BP (ie, the acquiring party) had to commit to divest a specific petrol station in a region where there were overlaps between the activities carried out by the acquiring party and the target.
As regards behavioural remedies, they could refer to a broad variety of obligations, such as modifying current or future contractual relationships and access by competitors to certain assets or customers; appointment of suppliers independent from the parties; maintenance of prices and other commercial conditions; limits to growth and obligations to make investments or restructure the company; or the modification or elimination of ancillary restraints. By way of example, in Case C-0945-18 Talleres Alegrí/Duro Felguera Rail, cleared in July 2018, the acquiring party committed to guarantee the supply to its competitors of necessary equipment and components in the same condition that applied prior to the concentration and for a period of five years in order to facilitate the continuity of their activities in the relevant markets
There are time limitations for proposing commitments to the CNMC: (i) in Phase I, commitments can only be proposed within the first 20 (calendar) days of Phase I; and (ii) in Phase II, commitments can only be proposed within the 35 (calendar) days from the date of the decision of the Council of the CNMC initiating Phase II.
Apart from these time restraints, the notifying party can start (informally) negotiating with the CNMC the submission of commitments at any time (even during pre-notification contacts).
Please note that, generally speaking, the parties could be allowed complete the transaction before the entirety of the remedies have been complied with, unless the CNMC decides otherwise and requires an upfront buyer or the fulfilment of particular commitments before closing. This should be assessed on a case-by-case basis.
In addition to the commitments offered by the notifying party, during Phase II, the CNMC can also impose conditions on the parties for clearing a transaction. Please note that if the Council of Ministers finally intervenes in the proceedings (please refer to 3.8 Review Process), it can also impose conditions on the parties on grounds other than competition law.
For the Council of the CNMC to consider that a structural commitment (eg, divestitures) is suitable to eliminate the competition concerns identified and resulting from the concentration, it is necessary that (i) the divested business unit is already a viable activity and it will remain so in the medium term and (ii) the potential purchaser is independent from the undertakings concerned, has sufficient capacity to become a viable competitor and its acquisition of the divesting unit will not hinder effective competition.
The notifying parties must submit a detailed plan previously negotiated with the Directorate of Competition of the CNMC, which will also monitor compliance. The plan must include a brief description of the different phases necessary for the implementation of the remedies and the timing for that implementation. The CNMC may impose an obligation on the parties to report periodically on the implementation of the remedies.
The decision putting an end to the merger control proceedings both in Phase I and in Phase II is sent to the notifying party and published on the CNMC’s website once all business secrets and other confidential data have been removed (after having provided the notifying party with the opportunity of indicating which information in its view has to be redacted).
Please note that if the Phase I or Phase II review periods elapse without the Council of the CNMC having adopted a decision, the transaction will be considered tacitly approved.
Foreign-to-foreign transactions that meet Spanish jurisdictional thresholds must be notified to the CNMC irrespective of the fact that parties do not have a physical presence in Spain (please refer to 2.8 Foreign-to-foreign Transactions). In this scenario, the clearance process does not differ from transactions involving Spanish companies. Therefore, in theory the notifying party may propose commitments or the CNMC may impose conditions (in Phase II) if it considers that obstacles for the maintenance of effective competition in Spain, or in a narrower geographic market within it, may result from the concentration. In the last instance, the concentration may also be prohibited.
To date, pure foreign-to-foreign transactions, where none of the parties has a physical presence in Spain, have not been subject to remedies or prohibition decisions by the CNMC.
Nevertheless, in the past, the Council of the CNMC has dealt with remedies in 'partial' foreign-to-foreign transactions. This was the case, for example, in Case C-0865-17 Integra/Codman Neurosurgery Business, in which Integra, a company that was only present in Spain through a distributor, acquired a business unit with a physical presence in Spain. The Council of the CNMC accepted in this case a divesting commitment offered by the notifying party before clearing the transaction.
Please also note that if the CNMC considers that a transaction could raise competition issues and that because of the absence of links with the undertakings concerned with Spain, it might be difficult for the CNMC to impose (and monitor) workable remedies, it might decide to resort to a referral to the European Commission pursuant to Article 22 of the EU Merger Control Regulation (see, for instance, Case C-0055/08, Arsenal/DSP).
Section 3 of the Spanish notification forms (both standard and short) require the notifying party to describe those provisions of the documents bringing about the transaction that are considered to be ancillary to the main concentration and would restrict competition.
The merger control decision of the Council of the CNMC (as well as the report and proposal of decision of the Directorate of Competition) will make a reference (and assess) to ancillary restraints (such as non-compete clauses, confidentially clauses, no-poaching clauses, purchase and supply obligations, licensing and advertising agreements, etc) that are directly linked to the transaction and necessary for its implementation. If these covenants are considered to be ancillary to the concentration, they will be covered by the clearance decision of the CNMC.
Ancillary restraints are usually assessed by the CNMC in accordance with the provisions of the European Commission’s Ancillary Restraints Notice.
To the extent that these restraints do not comply with the requirements set out in the Ancillary Restraints Notice and, therefore, are not considered ancillary to the transaction, the CNMC will indicate that those restraints are not covered by the clearance decision and thereby leave open potential further scrutiny under the competition rules prohibiting agreements between undertakings that restrict competition by object or effect (ie, Article 1 of the Spanish Competition Act or Article 101 of the Treaty on the Function of the European Union).
The intervention of third parties in the context of merger control proceedings in Spain depends very much on the stage of the proceedings.
During the Phase I review period, the rights of third parties would be rather limited since it is not foreseen in the Spanish Competition Act that third parties can request (and be granted) the condition of 'interested'.
Therefore, their intervention during Phase I would be basically limited to responding to CNMC’s requests for information (in the case that the CNMC conducts a market investigation) or if the notifying party submits commitments to participate in the market test of those commitments that the CNMC may carry out. However, third parties would not be given access to the file or be formally given the possibility of making submissions. This should nevertheless be understood without prejudice to the possibility of third parties informally holding discussions with the CNMC at any moment.
At the beginning of the Phase II review period, pursuant to Article 58.1 of the Spanish Competition Act, the Directorate of Competition of the CNMC would issue (a non-confidential version of) a note summarising the proceedings (nota sucinta) that will be made public and communicated to individuals and companies that could be affected by the transaction.
Within a ten working day period, third parties can (i) request to be recognised as 'interested' and (ii) provide comments to this note summarising the proceedings.
After third parties have been recognised that they are 'interested', they could have full intervention during Phase II (as per Article 66.4 of the Regulation of Defence of Competition). This effectively means that they would be given the possibility of accessing the file (once confidentiality issues have been resolved), making submissions to the Statement of Objections, participating in the market test of potential commitments submitted by the notifying party during Phase II (if the CNMC market tests them) or attending an oral hearing if there was to be one, among others.
As explained in 7.1 Third-party Rights, the participation of third parties in merger control proceedings in Spain will very much depend on the stage of the proceedings. The involvement of third parties during a Phase I review period will be much more limited (if any), than in a Phase II review period.
During Phase I, the CNMC may decide not to conduct any market investigation if the notified transaction does not raise merit issues (eg, notifications that can resort to a short form), in which case the involvement of third parties would be fairly limited or non-existent.
Conversely, if the CNMC does carry out a market investigation (whether in Phase I or in Phase II), it would contact third parties (eg, competitors, customers, suppliers) as part of its review. The same is applicable in cases where the notifying party submits remedies (either in Phase I or in Phase II) to solve the competition concerns identified by the CNMC (see in this regard Articles 59 of the Spanish Competition Act and 69 of the Regulation of Defence of Competition).
In all these cases, the CNMC usually sends written questionnaires to third parties to respond within a certain deadline. The CNMC may also conduct telephone interviews with third parties if it deems it necessary.
Until the notification is formally filed, all informal contacts with the CNMC (eg, pre-notification contacts) are kept confidential. Shortly after a transaction is formally notified, the CNMC makes it public on its website (see Article 37.(l) of the LCCNMC and Article 61.1 of the Regulation of Defence of Competition). The information that is made available on the CNMC’s website refers to the identity of the parties (and case number), which of the two Spanish merger control thresholds is met, whether the acquisition is of sole or joint control, the date of the formal filing, and the NACE code of the sector(s) involved. The CNMC will also make public on its website certain milestones during the proceedings, such as a Phase I clearance or the opening of a Phase II.
As provided in Article 42 of the Spanish Competition Act, and Article 20 and Annexes II and III of the Regulation of the Defence of Competition, the notifying party shall provide a non-confidential version of the notification form in which business secrets and other confidential information have been redacted, so that third parties or other parties to the transaction do not have access to them.
Similarly, pursuant to Article 42 of the Spanish Competition Act and Articles 61.3 and 4 of the Regulation of the Defence of Competition, once a decision has been adopted (whether in Phase I or in Phase II), the CNMC will grant the notifying party a five working day deadline to request confidential treatment of those business secrets and other confidential information contained in the decision of the Council of the CNMC and on the report and proposal of decision of the Directorate of Competition of the CNMC, before its publication on the CNMC’s website. The CNMC would have to decide on such a confidentiality request within a ten working day deadline (see Article 61.3 of the Regulation of Defence of Competition). The data for which the CNMC grants confidential treatment would be redacted from the public version of the decision and the report and proposal of decision that will be published on the CNMC’s website.
Apart from its co-operation for general policy matters, the CNMC does indeed co-operate with other competition authorities in the context of the assessment of economic concentrations.
Such co-operation does occur on a recurrent basis with the European Commission and other national competition authorities that are part of the European Competition Network (ECN). When the co-operation occurs with authorities that are part of the ECN, the CNMC does not request the parties’ waiver in order to be able to exchange information or views with the said authorities.
The CNMC does also co-operate with competition authorities that are not part of the ECN on a case-by-case basis. In these instances, the CNMC requests the parties to provide written authorisations to be able to exchange information or views with the competition authorities of third countries.
The decisions of the Council of the CNMC can be appealed by the parties to the transaction before the Contentious-Administrative Chamber of the Appeals Court (Audiencia Nacional), which enjoys full jurisdiction to review them. The Council of the CNMC’s decisions concerning merger control are not an exception in this respect.
The judgments of the Audiencia Nacional can be further appealed in cassation before the Contentious Administrative Chamber of the Spanish Supreme Court (Tribunal Supremo), provided that the appellant can show that the appeal presents 'cassational' interest (in the terms set out in Articles 86 and ss. of the Spanish Act Regulating the Contentious-Administrative Jurisdictions, Act 29/1998, of July 13th, as amended). Note that this cassation appeal before the Spanish Supreme Court is an appeal in law and that the Spanish Supreme Court will not be allowed to review the assessment of the facts carried out by the Audiencia Nacional.
Note that the merger control decisions that could have been adopted by the Spanish Council of Ministers can be appealed before the Spanish Supreme Court.
The decisions of the Council of the CNMC have to be appealed before the Audiencia Nacional within two calendar months as from the notification of the decision. The appeal is done through a simple submission that is afterwards complemented (formalizada) once the Audiencia Nacional provides a deadline to submit the writ of claims. In the initial submission the parties may request, separately, the Audiencia Nacional (if so wished) to award interim relief.
The judgments of the Audiencia Nacional shall be appealed within a 30-day deadline as from the notification of the judgment to the parties.
The time period that the Audiencia Nacional could take to issue a judgment on the parties’ appeal would very much depend on its workload. At present, the Audiencia Nacional, on average, is taking about two to two and a half years to resolve appeals. The Spanish Supreme Court is taking slightly less to issue its judgment in cassation appeals.
It is infrequent that undertakings concerned or parties to a concentration appeal the decisions of the CNMC. That said, there are examples in the past of notifying parties appealing clearance decisions of the (predecessor) of the CNMC. For instance, in 2012, Consenur (notifying party) successfully appealed before the Audiencia Nacional (see judgment of 19 September 2012, Case 304/2010) the clearance decision of the (predecessor) of the CNMC of its acquisition of Ecotec since it was established that the transaction did not meet the Spanish market share notification threshold contrary to the position sustained by the (predecessor) of the CNMC. This judgment was confirmed by the Spanish Supreme Court (see judgment of 25 May 2015, Case 3974/2012).
Third parties can appeal CNMC’s merger control decisions provided that they show that they have a legitimate interest.
The appeal by third parties should be brought before the Audiencia Nacional or the Spanish Supreme Court, as applicable, within the deadlines provided in 8.2 Typical Timeline for Appeals.
In a number of instances, third parties have appealed merger control decisions of the CNMC or its predecessors (see the judgments of the Audiencia Nacional of 7 March 2018 (Case 521/2014) or 13 March 2013 (Case 742/2010), among others). In these instances the Audiencia Nacional has usually recognised that third parties (ie, competitors) have standi since they showed a legitimate interest in appealing the CNMC’s decision. In other instances, where such a legitimate interest was more diffuse, the Audiencia Nacional has declared the appeal inadmissible (see, for instance, Audiencia Nacional’s judgment of 14 June 2012, Case 317/2010, where a trade union was not considered to have a legitimate interest).
This firm is not aware that any of these appeals by third parties has been successful.
There have not been any recent changes to the Spanish Competition Act or the Regulation on the Defence of Competition regarding merger control rules.
Please note that recently officials of the CNMC have informally indicated in competition law forums in Spain that they may consider profiting for the need to modify certain aspects of the Spanish Competition Act or the Regulation on the Defence of Competition, in order to comply with the implementation of the ECN+ Directive, to modify certain aspects of merger control rules as well.
Among certain potential amendments that the CNMC could propose, there may be certain adjustments to the Turnover Threshold, modifications to the formal consultation proceedings to the CNMC (so as to include certain binding deadlines for the Council of the CNMC providing a response) or amendments to the statutory deadlines for resolving in Phase I and (overall) in Phase II, to align them with those of the EU Merger Regulation.
Whether the CNMC will ultimately propose these or other amendments remains to be seen.
Please see 2.2 Failure to Notify for a description of recent fines imposed by the CNMC.
Please see 5.5 Negotiating Remedies with Authorities for a description of transactions being approved with remedies.
Please refer to 9.1 Recent Changes or Impending Legislation.