Pérez-Llorca and the Faculty of Law of the Universidad Pontificia Comillas (Comillas ICADE) alongside the Spanish Association for the Defence of Competition (AEDC) held a new session of the Pérez-Llorca/ICADE Chair on Economics and Competition Law, where renowned speakers analysed the challenges of public enforcement of the Competition Act and how it continues to evolve in Spain. The event was attended by the presidents of the Spanish competition authority from the past few decades, who shared their views on the impact of regulation and the role of institutions in the protection of competition.
Juan Jiménez-Laiglesia, Competition partner at Pérez-Llorca, opened the session by thanking the experts for their participation and underlined the importance of this type of event to stimulate debate and reflection on the present and future of competition law in Spain. The Pérez-Llorca partner stressed the importance of effective regulation adapted to economic and technological changes, thus ensuring the protection of competition in an increasingly dynamic and globalised environment.
Marcos Araújo, president of the AEDC, then moderated a session in which the presidents spoke in chronological order, from Amadeo Petitbó to the current President Cani Fernández.
The meeting was attended by the Spanish competition authority’s former presidents Amadeo Petitbò Juan, Gonzalo Solana, Luis Berenguer Fuster, Joaquín García Bernaldo de Quirós and José María Marín Quemada, as well as Cani Fernández Vicién, current President of the Spanish National Commission on Markets and Competition (using the Spanish acronym, the “CNMC”).
During the session, Amadeo Petitbò Juan highlighted the usefulness of economic analysis in the application of competition law, examining a case in which price fixing by a company with a dominant position was similar to that corresponding to a competitive situation. This led to it being sued for imposing barriers to entry on its competitors with higher production costs. Had it set higher prices, even monopoly prices, it would have been sued for abuse of a dominant position. In his view, if a company with a dominant position acts as if it were in competition, it should not be penalised. This case shows the relevance of combining legal and economic analysis.
Gonzalo Solana spoke about the challenges of competition law in the face of government intervention in a rapidly changing geopolitical context. He recalled his time as head of the authority between 2000 and 2005, highlighting the importance of the Servicio de Defensa de la Competencia (Competition Defence Service) in the preparation of reports and the need for proper justification of decisions. He highlighted advances such as cooperation with the autonomous communities, the creation of the Escuela Iberoamericana de la Competencia (Ibero-American Competition School) and participation in the International Competition Network. In his speech, he also called for the authority to carry out more educational work to facilitate compliance and highlighted the usefulness of compliance programmes as a preventive tool.
Luis Berenguer Fuster analysed mergers in the audiovisual sector in Spain, addressing questions about competition regulation in this area. In addition, he referred to Article 10.4 of the Competition Act, which sets out the supervision of sectoral regulation, suggesting that its wording is too broad and may need to be revised.
Joaquín García Bernaldo de Quirós focused on the increasing public intervention in the economy, mentioning the role of public entities in sectors where there is no clear market failure. He expressed concern about the CNMC’s independence from government interference and warned about the risks of over-regulation, comparing it to the US model. He then went on to explain the relevance of the authority’s action in terms of publication of reports in certain areas (public tenders, land market) essential for the development of effective competition.
José María Marín Quemada stressed the importance of institutions as pillars of the state. He also discussed settlement, or the conventional termination of proceedings, an alternative to the ordinary procedure in which companies acknowledge their participation in a cartel infringement and collaborate with the authority to speed up the resolution of the sanctioning proceedings. As regards sanctions against people in management positions, he considered that they do not have an adequate deterrent effect.
Finally, Cani Fernández Vicién pointed out that in the current legislature there is no regulatory vehicle for settlement or for sanctions against people in management positions. She also highlighted the resurgence of exploitative abuse of dominant positions in sectors such as pharmaceuticals and digital, citing several cases recently analysed by the CNMC. She also underlined the key role of European regulators in enforcing the Digital Markets Act (DMA) and the Digital Services Act (DSA), ensuring fair competition in the digital environment. Lastly, she reiterated that the CNMC has no role as a consumer authority, mentioning the fake review case, which was closed and referred to the Directorate-General for Consumer Affairs.
