L’esperienza spagnola nella difesa della concorrenza
Authors: Canivell Joaquin Martin 
Published: December 2019

The promulgation of the new Italian Law for the protection of competition and the market urges a comparison with the corresponding Spanish legislation, taking also account of its evolution.

In 1963 a first competition law was introduced in Spain as a consequence of a request by the United States, whose intention was to increase its business activities in Spain. Another justification of the interest of Spain for introducing this law was the idea that it could be a step forward the European Common Market.

This law was not very effective and, furthermore, its life has not been very easy, though it included the main legal definitions of the EEC Treaty, in particular provisions for cartels and for abuse of a dominant position. In addition, the Spanish law introduced a definition for «dominant position».

In order to implement the law, two organisms have been created: the «Service for the Defence of Competition” and the Tribunal having the same name.

Both the law and the administrative system organized on its basis became almost useless, because for the first two decades very few decisions had been taken and the only proposal by the Tribunal to the Government for inflicting a sanction was not approved. By consequence, the Tribunal made no other attempts to propose measures to the Government.

The revival came after the introduction in Spain of the Constitution, which was promulgated in 1978 and which established, in art. 38, a free-enterprise system in the framework of a market economy to be protected by the public authorities.

A judgement by July 1st, 1986, of the Constitutional Court, confirmed that competition is a component of the market economy which protects rather than restrict the freedom of enterprise.

By the end of 1985 the Service for the Defence of Competition started a new life. The same happened with the activities of the Tribunal. The number of examinations increased and after 1988 the Tribunal tried again to inflict sanctions, and it was successful.

A new law for the protection of the competition was approved by the Parliament on July 17th, 1989 and is in force in Spain since that time. It is founded on the EEC Treaty and it also benefits from the experience with the previous law.

Cartels and abuse of dominant position are the main objects of the law which introduced, in addition, the case of «unfair competition».

The Tribunal can injunct to the undertakings to suspend their action and to eliminate its consequences. Another innovation of the law was the attribution to the Tribunal of the power to inflict fees up to 150 million pesetas (about 1,7 billion Italian lire), to be increased until the 10 per cent of the turnover.

As it was with the first law, two organs are committed to the safeguard of competition: the Service for the Defence of Competition and the Tribunal. The Service has the assignment to start preliminary investigations, to supervise the enforcement of the judgements of the Tribunal, to keep the register with the annotations of authorizations, prohibitions and concentrations and to make studies on the economic system.

The Tribunal is an organ of the Ministry for Economy and Finances, but is functionally independent. Its eight members (economists and lawyers) and the president are appointed by the Government for six years and can be confirmed. The president is Secretary of State and the members have the rank of general directors. Decisions are taken by the Tribunal with a majority of six votes (including that of the president or of the vicepresident).

Apart from its judiciary powers, the Tribunal can express opinions and give advices upon request by the Parliament, by the Government or by Ministers, as well as by local governments, by unions and by organizations of producers and consumers.

The Tribunal has also the power to authorize agreements and other actions prohibited by the competition legislation, on the basis of these reasons: 1) productive improvements or better wholesalers’ organization, technical or technological progress; 2) partecipation by the consumers to the resulting benefits.

No limitations to competition can be introduced in order to obtain such results. Competition cannot be eliminated from the market or from a relevant part of it.

Such authorizations are not retroactive and can be renewed or revoked.

On the subject of economic concentrations, the Tribunal can take action only on request by the Minister for Economy and Finances. The notification by undertakings is voluntary. The advice provided by the Tribunal to the Minister is not binding, since the power to decide on concentrations is entirely under the responsibility of the government.

The rules of procedure adopted by the Tribunal and the Service are flexible and effective in order to guarantee the rights of the citizens. The judgements of the Tribunal can be taken to the Civil Courts. Also damage compensation is decided by the Civil Courts.

At the moment, there are not yet cases on the basis of the new law and those pending follow the rules of the old law.

Some authorizations, instead, have been decided already by the Tribunal whose advice has been requested twice on cases of concentration.

New regulations for authorizations by category will be issued in the next future. Other rules for cases of individual authorization will also be provided.

The number of cases submitted to the Tribunal increases and the number (as well as the amount) of fees goes up as the public opinion realizes how beneficial can be competition for the general welfare.