CNMC wants to raise the fine for executives in cartel cases to 400,000 euros


Cani Fernández also requests the future government to leave after the general elections on July 23. The president of the National Commission for Markets and Competition (CNMC), has stressed that she will demand that the new Executive recover all related amendments with the organization that were included in the Financial Client Authority. The bill decayed in the Senate due to the advancement of the elections and the consequent dissolution of the Cortes.

In an intervention at the conference organized by the Menéndez Pelayo International University and the Association of Economic Information Journalists (APIE), -reported by Europa Press- Fernández pointed out that among these amendments was the modification of the Law for the Defense of Competition in order to extend the fines to companies that participate in a cartel to a maximum of 50 million and a minimum of one million euros. Here too the fine for participating managers was increased from 60,000 to 400,000 euros.

Fernández has emphasized the need to recover another amendment, also included in the Financial Client Authority, which allowed the body to obtain greater independence in the management of their positions of greater responsibility, so that these can be assumed by agency workers and not only by officials of the A1 subgroup.

Extension of the term of the disciplinary procedure

The Government took advantage of the processing of this regulation to satisfy some of the demands that the organization had been demanding for years. This is the case of the extension of the general term of the disciplinary procedure from 18 to 24 months, while the term of the second phase of merger control goes from 2 to 3 months.

However, the advancement of general elections meant the dissolution of the Cortes Generales, which caused the bill for the creation of the new financial body to die in the Senate. “When there is a government formed, I will recover those amendments, because it is the culmination and resolution of internal management problems of the house”, he added. During her speech, the president of the CNMC also took the opportunity to remember and celebrate the tenth anniversary of the regulatory body in 2023, as well as the first Competition Law of Spain, which is 60 years old.

Criteria and duration on sanctioned companies

On the other hand, the plenary session of the CNMC has approved the communication to establish the criteria of scope and duration that it will use when imposing the prohibition of contracting with public administration those companies penalized for violating competition law. This has been confirmed by the president of the organization at the APIE conference.

As explained, with the approval of this communication, in all Competition files it will be the CNMC that will apply the duration and scope of the prohibition to hire. With the current Public Sector Contracts Law, in the event that a company infringes the regulations, the declaration of infringement automatically entails a prohibition to contract with the public sector.

However, Fernández has explained that this prohibition can be carried out in two ways. One possibility is that it is the Competition that determines the duration and scope of the sanction with a maximum of three years, or that it is the Public Sector Contracts Board that issues a report to the head of the Ministry of Finance, which will be who will ultimately enforce the ban.

From the moment this prohibition came into force with the latest Public Sector Contracts Law, in 2015 the CNMC had decided to opt for this second path. However, the president of the organization has indicated that this form of proceeding has been shown to be “ineffective“. “It is not being applied,” said Fernández.

And it is that, as the president of the regulator has recalled, the National Court appealed the sanctions imposed on the companies by the Contracts Board, so that the sanction was suspended in a precautionary manner. In addition, according to the criteria of the National Court, in the event that the sanction is final, the prohibition covers any entity of the public sector. “This company will not be able to contract with anyone. If we are, we can modulate the scope of the ban and we can say that the ban is the one that will most affect these products in this geographic market and with respect to the economy,” he said. explained Fernandez.

“That company will not be able to contract with anyone; if it is us, we can modulate the scope of the ban and decide if it will affect the economy”

In the opinion of the head of the organization, this provides greater transparency and clarity to companies, since, if they want to appeal the sanction, they know in advance with which organizations, companies or institutions they are prohibited from contracting and for how long. Thus, from now on, it will be the CNMC that determines the scope and duration of the ban on hiring sanctioned companies, and it will do so based on the nature of the infringement and the potential impact of the ban on markets.

In addition, the duration and scope of the prohibitions will be included by the CNMC in the resolution of the disciplinary proceedings that begin from the entry into force of Communication 1/2023. The new system will allow the geographical and product scope of the prohibition and its duration to be set from the outset, even if its effectiveness is later judicially suspended. “The measure aims to increase legal certainty and strengthen compliance programs and the culture of competition in companies“, they have highlighted from the CNMC in a statement.

On the low remuneration of deposits

On the other hand, Fernández has considered that the resistance of the Spanish banks to remunerate the deposits of their clients supposes in practice a “tacit collusion” that the CNMC does not have the legal capacity to combat. “We can act if they agree on prices or if there is an abuse of a dominant position,” recalled, to add that the Spanish banking sector “is a transparent market in which it is not even necessary to agree, because decisions are made by mere observation of what others do”, a practice that European jurisprudence and Spanish denominates “intelligently adapt to the behavior of its competitors”.

“That which is a tacit collusion, is ahole in our tool system to fight in markets with little competition”, lamented Fernández, who recalled that the CNMC only has the capacity in these cases to carry out a “market study”, but without the possibility of forcing the companies to provide them with the information or to assume the conclusions of the report, which is why it has called on political parties to include regulation of this tool in their electoral programs in order to obtain the necessary information and force companies to comply with the recommendations.

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