CMS Expert Guide Competition Compliance Programmes in Spain

Yes, in 2020, the Comisión Nacional de los Mercados y la Competencia (“Spanish NCA”) published Guidelines on competition compliance programmes (‘Guia de programas de cumplimiento en relación con la defensa de la competencia’) (“Spanish CCPs Guide”).

According to the Spanish CCPs Guide, the key components of an effective program include:

• Top management commitment: management must demonstrate commitment to competition and establish an organizational culture that values compliance.
• Risk assessment: an assessment of competition-related risks in the company should be carried out, identifying vulnerable areas to potential violations.
• Policies and procedures: establish clear policies and written procedures that address anti-competitive conduct and its prevention.
• Training and awareness: provide regular training to employees on competition rules and company policies, ensuring that they understand their importance.
• Communication channels: implement effective communication channels for employees to raise questions or concerns about competition in a confidential manner.
• Sanction mechanisms: establish disciplinary measures for employees who violate the company's competition policies.
• Review and continuous improvement: regularly review the compliance program to adapt to legislative, market or internal structure changes.

Yes, there are recent cases where the Spanish NCA has assessed if the implementation of CCPs by infringing companies could result in the application of a reduction of the fine as a mitigating circumstance (as stated in the Spanish CCPs Guide).

For example, in case S/DC/0627/18, CONSULTORAS, the Spanish NCA assessed if the implementation of ex ante and ex post CCPs by some of the investigated companies met the requirements for the application of a mitigating circumstance. In this case, only one of the companies obtained a 10% reduction for having implemented (before the investigation) and subsequently improved (during the proceedings) a CCP. In particular, after the opening of the proceedings, the company conducted an internal audit to ascertain the facts, fired various employees involved in the anticompetitive conduct and modified its compliance manual to adapt it to the Spanish CCPs Guide. As for the rest of the companies, the Spanish NCA considered that the essential elements of their CCPs were insufficient to be considered as a mitigating circumstance.

In the same sense, in cases S/0021/20, OBRA CIVIL 2, S/0025/19, GESTIÓN DE ARCHIVOS and S/0013/19, CONSERVACIÓN CARRETERAS, the Spanish NCA rejected the consideration of the ex ante and ex post CCPs implemented by some of the infringing companies as a mitigating circumstance. The Spanish NCA assessed the effectiveness of those programs on a case-by-case basis and found them insufficiently complete and efficient to raise awareness among employees about the importance of complying with competition rules, to prevent and detect anticompetitive conduct and to determine an adequate collaboration in the framework of an investigation. 

Regarding ex ante CCPs, the Spanish NCA considers that to be truly effective, they should ensure, through the clear establishment of parameters of conduct and the implementation of organizational measures for their development, the existence of real commitment to compliance, allowing for the detection or prevention of anti-competitive practices. Furthermore, they should contemplate measures to adequately collaborate with the Spanish NCA in case of investigation.

With regard to improvements of existing programs or adoption of ex post CCPs, the Spanish NCA has positively considered, in addition to the acknowledgement of the facts and the termination of the conduct in the framework of the investigation, that the CCP provided a series of reactive measures promptly adopted by the company, which were considered an expression of the company's willingness to comply and provide elements of effectiveness to its program. 

Yes, according to the Spanish CCPs Guide, it is very important that there is an involvement of the company's management bodies and/or senior management. In particular, the Spanish CCPs Guide clearly states that the fact that any of the company's senior management is directly involved in a competition infringement could, depending on the circumstances of each case, determine the ineffectiveness of the compliance program if it is concluded that their involvement in the infringement precludes genuine commitment to comply with competition rules.

On the other hand, the Spanish CCPs Guide indicates that the existence of an internal whistleblower channel (through which the company's employees can report any violation of competition law) is essential for the effective implementation of compliance programmes.

Yes, in recent years, the NCA began to positively consider the implementation of CCPs by infringing companies, recognizing them as mitigating circumstance when determining the fines. So far, the maximum reduction granted has been a 10%.

The granting of the reduction as a mitigating circumstance will depend on the effectiveness of the program, whose assessment will be made by the Spanish NCA on a case-by-case basis.

Indeed, in case S/DC/0627/18, CONSULTORAS (cited above), the adoption and updating of a CCP that, in the Spanish NCA's opinion, made the CCP meet the requirements established in the Spanish CCPs Guide, was considered as an attenuating circumstance, leading to a 10% reduction in the sanction imposed.

However, in other cases (e.g. S/0021/20, OBRA CIVIL 2, S/0025/19, GESTIÓN DE ARCHIVOS or S/0013/19, CONSERVACIÓN CARRETERAS) the Spanish NCA did not grant any reduction since it considered that the ex ante CCPs implemented by some of the infringing companies did not result in the identification of the anticompetitive conduct nor allowed  adequate collaboration with the NCA in the framework of the investigation. As per the ex post CCPs, the Spanish NCA found that they were not specific enough to competition matters and considered that the policies were not effective in raising awareness and installing a culture of regulatory compliance within the organizations, and did not incorporate firm reactive measures aimed at preventing such behaviour in the future.

Additionally, and while this has not been applied in practice yet, the Spanish CCPs Guide foresees the possibility of a company being fully exonerated from the payment of a fine (not just partially) in non-cartel cases when an infringement may have been identified thanks to a CCP and the company has actively and efficiently collaborated with the Spanish NCA, which – according to the Spanish CCPs Guide – would constitute evidence of the company’s commitment to compliance with competition law rules (while the Spanish CCPs Guide mentioned expressly case S/DC/0596/16, Estibadores Vigo as an example of this possible full exemption of the fine, the decision in the case did not actually refer to any CCP being implemented or improved by the only entity that benefitted from this possibility of total exemption). 

Yes, according to Spanish rules, the adoption or updating of a CCP could lift the prohibition to contract with the public administration for having participated in a competition infringement. For example, in case S/DC/0627/18, CONSULTORAS, the Spanish NCA declared that as a result of the updating of an ex ante CCP by one of the infringing entities, it should be excluded from the prohibition to contract with the public administration which had been imposed on the rest of infringing companies.

The Spanish NCA seems to be increasingly focusing on the importance of creating a strong compliance culture in the companies. This change highlights that compliance is not just about having written rules and procedures; it is mainly about creating an environment where ethical behaviour and compliance with competition laws are part of the company’s daily activities and culture.

No.