Spanish competition activity: a year in review and a snapshot of what’s in store

A couple of months ago we exited 2020, a strange year with a myriad of unexpected events. But, despite everything, a review of how the antitrust world has evolved in Spain can provide some insights into what is to come.

2020 was undoubtably marked by Covid-19 and its effects inevitably show in the authority’s activity but confinement and mobility/business restrictions have not prevented the Spanish Competition Authority from continuing progress along its marked route. It goes without saying that running the authority efficiently was not easy and some investigations and other tasks were delayed, sometimes significantly, but other opportunities have also arisen such as those stemming from the inbox set up to register complaints in connection with Covid-19, where over 500 complaints have been submitted and that has already resulted in some new investigations.

When looking at the authority’s activity, one noteworthy area is investigations into abuse of dominant positions. We have seen an uptick in the authority’s work in this space, predominantly in the pharma sector, signalling that the authority is no longer as reluctant to pursue this type of investigations. But agreements between competitors -the authority’s preferred option- have by no means been forgotten, with digital platforms and bid rigging catching attention.

Fines have perhaps seen less of a change, which is understandable as the authority already had a clear position. But what is apparent is that the authority will more frequently resort to new mechanisms such as fines to directors and preventing companies from bidding for public contracts, in its continuing effort to increase deterrence.

Also in the investigation space, we have seen the authority close some proceedings with commitments decisions. This was also rather infrequent in the past and is seen by some as a wink at the new settlement regime to be introduced in Spain when our law is amended -hopefully soon-.

And, finally, merger control has also been interesting in 2020, as it usually is. In this space we have witnessed a healthier and less antagonistic debate on complex mergers and, also, the first dawn raids to investigate gun jumping practices.

Complementing its more day-to-day activities, the authority published its action and strategic plans for public consultation. Those relevant documents highlight issues such as the need to understand and monitor digitalization (big data, platforms, etc.) and sustainability issues, showing the authority’s interest in maintaining keeping up to speed with market developments.

Last, but not least, our legislator plans to amend the Spanish competition legislation to better serve the incoming normality, in the wake of EU Directive ECN+ and other existing regulatory initiatives (the Digital Markets Act, the Digital Services Act, the European Green Deal framework or the European review of the Vertical and Horizontal Guidelines). While progress is slower than desired, it is likely that -amongst others- fines will be increased (particularly for individuals), we will have a new-to-Spain settlement procedure and merger control thresholds will be tweaked.

So, to round up, while 2020 was evidently a complex and atypical year, it still provides insights into the future of the Spanish competition arena. We will see what else is in store as we push forward.