Wednesday, July 23, 2008
Posted by D. Daniel Sokol
ABSTRACT: The new Spanish Competition Act, which was unanimously approved by the Spanish Parliament and came into force on the first of September 2007, introduces significant modifications to the system applied to date. This Act builds on the system designed by the 1989 Act, largely drawing on the experience gained at the Community and national level during the last two decades.
The reform stems from the need to face national and European legislation changes. At a national level, a number of complementary regulations had been enacted, such as the Act 1/2002, dated February 21, concerning the Coordination of the Competences of the State and the Regional Governments on antitrust matters. This Act was the result of a Constitutional Court Ruling, and sets an allocation scheme of responsibilities where no overlapping is allowed.
Moreover, over the last few years, a significant reform has taken place in the EU antitrust framework which has resulted in the new Council Regulation (EC) No. 139/2004, of January 20, 2004, on merger control and, above all, in the modernization of the fight against anticompetitive practices based on the Council Regulation (EC) No. 1/2003, of December 16, 2002, and on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. The latter set up a new distribution of responsibilities among the European Commission, national authorities, and national courts (national judicial bodies). On the other hand, the modernization brings about a new legal exemption system that substitutes the former regime of individual authorizations.
In this context, the reform takes into account the evolution of the Spanish economy marked by a significant transformation of its market structure, from certain public monopolies to free competition, after a process of privatization, liberalization, and deregulation, in order to achieve a competitive environment. To achieve effective market competition, the role played over the last fifteen years by the competition authorities has been vital. This role has operated through a dual and complementary approach. On the one hand, a certain deterrent capability has been created either by sanctioning anticompetitive practices, mainly after parties’ complaints, or by hindering the appearance of anticompetitive market structures, through the blocking or conditioning of relevant concentrations. On the other hand, authorities had somehow pursued an offensive advocacy approach when it came to the design of the liberalization processes and the guarantee that these processes were correctly directed towards free competition.