Spanish Competition Authority announces COVID-19 related competition law measures

• The Spanish National Markets and Competition Commission (Comisión Nacional de los Mercados y la Competencia, or “CNMC”) has announced that, although administrative terms and deadlines have been suspended as a result of the state of emergency announced by the Spanish government, it will continue to handle all proceedings that are necessary to safeguard the general public interest and ensure that the markets function properly.
• Specifically, the CNMC will continue to take action where necessary in order to ensure competition continues to work well both for the market in general and for specific sectors.
• The CNMC has also announced that, as a result of having launched a whistleblowing hotline and enquiries tool connected to the current health crisis, it has already launched a number of investigations in the financial services, funeral services and health product manufacturing markets.
• In less than one week, the CNMC’s whistleblowing and enquiries tool received more than 50 complaints as well as enquiries from businesses about the compatibility with competition rules of some of their temporary cooperation arrangements in light of the current crisis.

THE CNMC’S DECISION ON ADMINISTRATIVE DEADLINES AND TIME PERIODS

On 14 March 2020, Royal Decree 463/2020, which declares the state of emergency to tackle the health emergency caused by COVID-19, came into force. Following publication of the Royal Decree, all deadlines and time periods for proceedings before public bodies have been suspended.

Nevertheless, under the Royal Decree it remains possible for a public body to decide to continue with certain ongoing proceedings and to open others in relation to events triggered by the state of emergency itself.

In that context, the CNMC has announced two specific courses of action:

• It will continue to pursue proceedings that are essential for safeguarding the general public interest and to ensure the proper functioning of the markets, in respect of the following: (i) priorities set out in the CNMC’s action plan for 2019 and 2020 and actions for implementing these; (ii) the CNMC’s settlement role in the electricity and natural gas sectors; and, more generally, (iii) the CNMC’s role in ensuring control in any market in the current situation.
• It will authorise the CNMC’s Regulatory Supervision Committee (Sala de Supervisión Regulatoria) and Competition Committee (Sala de Competencia) to take any action or make demands for information from private or public entities with the aim of preventing anticompetitive practices and abuse in regulated markets.

INVESTIGATIONS OPENED BY THE CNMC

On 31 March the CNMC announced that it was launching an online whistleblowing hotline and enquiries platform to receive competition law complaints or enquiries in relation to measures or practices connected to COVID-19.

The CNMC has reported that in its first week the hotline received more than 50 complaints on anticompetitive conduct related to COVID-19 and that, on the back of those complaints, it has opened investigations in the financial services, funeral services and health product manufacturing markets:

• In the financial services sector, the CNMC is analysing whether the requirement imposed by some financial institutions to provide an additional guarantee (in particular, taking out life insurance) to grant state-guaranteed loans (ICO credit) and other financial aid as a result of the extraordinary regulations approved to tackle the COVID-19 health crisis could amount to anticompetitive conduct – by distorting free competition – and be detrimental to the public interest in the context of the current crisis.
• In the case of the funeral services sector, the CNMC is investigating whether the prices charged by a number of funeral service companies during the health crisis could be due to anticompetitive arrangements between competitors or aggressive unfair practices that are objectively contrary to the requirements of good faith.
• The CNMC has also explained that it is closely monitoring pricing in the health products sector (such as sanitising gels and raw materials used in their manufacture (ethanol)) and market shortages with the aim of identifying and, where appropriate, penalising anticompetitive practices.

REQUESTS FOR GUIDANCE ON COORDINATION

The CNMC has also announced that it has authorised a number of commercial arrangements entered into between competitors to counter the impact of the current crisis. The CNMC has pointed out that competition regulations continue to apply and that the measures authorised in the current context are temporary, given the exceptional situation, and should be terminated as soon as the affected sectors are able to organise themselves and companies are able to operate independently again.

Contacts