This article first appeared in the second edition of The International Comparative Legal Guide to: Cartels & Leniency; published by Global Legal Group Ltd, London www.iclg.co.uk

1 The Legislative Framework of the Cartel Prohibition

1.1 What is the legal basis and general nature of the cartel prohibition e.g. is it civil and/or criminal?

The Spanish Competition Act (hereinafter, the Competition Act) entered into force on 1 September 2007 (Law 15/2007, 3 July, on Defence of Competition) and replaces former Law 16/1989, 17 July. In addition, the Spanish Government has recently adopted the Royal Decree 261/2008 of 22 February 2008, for the implementation of the Regulation on Defence of Competition (the "Royal Decree"), which came into force on the 28 February 2008 and deals with the execution of some essential aspects of Law 15/2007: e.g. conduct de minimis, leniency, promotion of competition, proceedings, etc.

The NCC also recently published Provisional Guidelines relating to the handling of exemptions and applications for the reduction of fines with the aim of serving as a reference for leniency applicants. The enforcement system is also supplemented by Law 1/2002 on coordination of competencies between central and regional bodies (see question 9.2).

The Competition Act aims at reinforcing existing mechanisms and providing the tools and optimal institutional structure to protect competition in the market. At the same time, it takes into account the changes introduced at EC level, notably Regulation 1/2003, and the powers of regional governments in this field. The new system is based on the experience gained in the past 15 years in the application of both Spanish and EC law. Law 1/2002 has been slightly amended by the Competition Act in order to reflect some of the new changes.

Spanish competition law has two different aspects: public and private.

As for the nature of the cartel prohibition, the Spanish competition law aims at regulating free trade and it has thus an administrative nature. Besides, the regional and national authorities in charge of applying the antitrust provisions belong to the State and Regional Administration respectively.

On the other hand, Spanish competition law has traditionally had a commercial nature, as it seeks to regulate undertakings involved in economic activities. Similarly, the Commercial Courts are in charge of the private enforcement of Spanish competition law. The cartel infringement entails an administrative sanction consisting of a fine if it is imposed by the regional or national competition authorities or a fine and compensation for damages if imposed by the Commercial Courts.

Even though the cartel prohibition has an administrative/ commercial nature, the Spanish Penal Code also contains a limited number of provisions regarding unlawful competition conduct. For instance, article 282 refers to price distortion impeding free competition, providing imprisonment penalties from 6 months up to 2 years together with fines from 1 up to 2 years and article 262 refers to bid rigging in auctions and public tenders, providing imprisonment penalties from 1 up to 3 years together with daily fines from 1 up to 2 years and loss of licence for public bidding.

1.2 What are the specific substantive provisions for the cartel prohibition?

The prohibition of anti-competitive agreements is enshrined in article 1 of the Competition Act, which prohibits any agreement, decision or collective recommendation or any concerted or consciously parallel practice which has as its object or effect the prevention, restriction or distortion of competition in all or part of the Spanish market, and in particular those that:

  • directly or indirectly fix prices or any other commercial or service terms;
  • limit or control production, distribution, technical development or investments; share markets or sources of supply;
  • apply dissimilar conditions to equivalent transactions in commercial or service relations, thereby placing some competitors at a competitive disadvantage; and
  • make the conclusion of contracts subject to the acceptance of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

It also sets forth a definition of a cartel as "a secret agreement between two or more competitors which have as object fixing prices, production or sales quotas, sharing markets including bidrigging or restricting imports or exports".

Finally, apart from the fines which can be imposed by the (central or regional) antitrust authorities (see section below on fines), agreements or any other decision prohibited by article 1 shall be deemed void.

1.3 Who enforces the cartel prohibition?

The Competition Act has reshaped the institutional structure of the central government competition authorities.

As from the entry into force of Law 15/2007, a new single independent authority, the Comisión Nacional de la Competencia or National Competition Commission (NCC), is in charge of applying the Competition Act at a national level. The NCC is integrated by the chairman, the Council and the Investigation Directorate.

The chairman is entrusted with managerial and representation duties. The Investigation Directorate is in charge of conducting investigations into cases and preparing files as well as studies and reports.

The Council, empowered with the final decision-making power, is composed of the chairman of the NCC and six members. All of them are appointed for a non-renewable six-year term by the government following a proposal by the Ministry for Economics, after a hearing takes place in the Committee for Economics of the Congress. A majority vote of the Council is required for the appointment of the director of the Investigation Directorate, who is also appointed by the government following a proposal by the minister for economics.

The NCC is controlled by the parliament. It is foreseen that the NCC will draft an annual report and its chairman will appear before the parliament regularly. In addition, the Competition Act includes provisions on transparency (i.e., publication of reports and decisions). One of the most important changes introduced by the Competition Act is the possibility that certain provisions may be directly applied by the Commercial Courts (i.e., prohibition of anti-competitive agreements and abuse of dominant position). Furthermore, the Commercial Courts will be able to award damages based on the Competition Act without requiring a prior administrative decision finding an infringement. In view of the increased importance of Commercial Courts, the Competition Act introduces an amicus curiae system inspired by Regulation 1/2003 under which the NCC and the antitrust regional bodies may submit observations regarding the application of the Competition Act. (See section 8 below.) As already mentioned, since the enactment of Law 1/2002, enforcement of Spanish competition rules (except for merger control) is shared with the regional governments. This law also sets out some rules on coordination. Spanish competition rules can be applied by regional authorities provided the conduct at stake has regional scope. For this purpose, regional governments have to assume these competencies. To date, nearly all Spanish regions have enacted rules but not all of them have established ad hoc authorities. The Competition Act establishes that the NCC will be under the duty to request a non-binding report of a regional authority on a particular case regarding the application of the Competition Act provisions or even article 81 and 82 of the EC Treaty, provided there is a significant impact of the infringement on the regional territory.

Finally, the Competition Act confirms that the sectoral regulators (i.e., telecommunications and energy) cannot apply the Competition Act provisions; they have to refer the case to the NCC.

Nevertheless, sectoral regulators have to draft non-binding reports for the NCC in certain cases. Finally, the Competition Act aims at increasing coordination with the sectoral regulators setting out a mechanism of regular meetings.

1.4 What are the basic procedural steps between the opening of an investigation and the imposition of sanctions?

The Competition Act sets up a two-phase procedure: investigation carried out by the Investigation Directorate and the resolution by the Council.

Proceedings are initiated by the Investigation Directorate on the basis of a non-binding complaint, of its own motion or on the initiative of the NCC. Before opening formal infringement proceedings, the Investigation Directorate can proceed with an initial investigation (información reservada). During this preliminary phase the Directorate can carry out inspections. Once proceedings have been formally initiated, the investigated companies are heard, and have the chance to submit observations regarding the statement of objections. The Directorate's fact-finding powers have been reinforced in line with Regulation 1/2003 (i.e., inspection of homes of directors, managers and other members of staff and the possibility of sealing any business premises and books or records for the period and to the extent necessary for the inspection, see section 2 below). The Council can adopt interim measures at any time during the course of the proceedings and without a maximum duration period. Once the Directorate has finished its investigation and concludes there is a potential infringement, it will refer the case to the Council. This Council will then assess the case and adopt a final decision on the infringement and fines.

The Competition Act states the maximum length of the procedure is 18 months (although under certain circumstances this deadline can be extended). The Royal Decree determines the maximum length of each stage of the procedure (investigation and resolution).

1.5 Are there any sector-specific offences or exemptions?

One of the main features of the Competition Act in this field is the abolition of the system of individual exemptions in line with Regulation 1/2003. Therefore, the prohibition described above will not automatically apply provided the same criteria set out in article 81.3 of the EC Treaty are met. Furthermore, the EC Block Exemptions will also apply to those agreements even in the absence of cross border impact. In addition, the government can adopt block exemptions, e.g. under the former Act the Government adopted Royal Decree 602/2006 implementing the block exemption on information exchange agreements relating to late payments. The Competition Act also includes a provision whereby findings of inapplicability may be made similar to article 10 of Regulation 1/2003.

Nevertheless pursuant to article 4, the prohibition set out in article 1 does not apply to conduct resulting from the application of a law. However, this inapplicability is without prejudice to the application of the EC competition law provisions.

Similarly, the prohibition will not apply to conduct of minor importance that qualifies as "de minimis", according to criteria set out in Royal Decree 261/2008. Nevertheless, taking into account the practice and experience acquired in this respect, as well as the European Commission Notices on this matter, the NCC may prepare a Communication to clarify the afore said criteria.

1.6 Is cartel conduct outside Spain covered by the prohibition?

The Competition Act does not include any particular provisions setting out its extraterritoriality enforcement on cartel conduct taking place outside of Spain. However, as article 1 states, a prohibition of any conduct "which has as its object or effect the prevention, restriction or distortion of competition in all or part of the Spanish market", cartel conduct carried out outside Spain which has effects in all or part of the Spanish market, has the potential to be covered by the cartel prohibition.

2 Investigative Powers

2.1 Summary of general investigatory powers.

The Investigation Directorate, in charge of the enquiries, is the authority invested with the powers referred below, since the Council is only empowered with the final decision-making power.

Table of General Investigatory Powers

 

Please Note: * the investigatory measure requires authorisation by the corresponding Court for Contentious Administrative Proceedings where the defending party has its registered office or domicile. In practice, the NCC usually asks for the judicial authorisation before acting in order to avoid delays or/and denials.

2.2 Specific or unusual features of the investigatory powers referred to in the summary table.

Within the powers of inspection attributed to the NCC, the authorised personnel will be able to enter not only any premises of the undertakings, but also all land and means of transport owned by them.

They can enter not only the private homes of the entrepreneurs, but also those of managers and other members of staff of the undertakings concerned.

They will have the right to verify copy, retain (for a maximum period of 10 days) and seal the books and other records relating to the business activity, under investigation irrespective of the medium on which they are stored.

Furthermore, the seal of the NCC will not be restricted to the business premises; it will also be possible to seal other business assets.

As regards the compulsory interviews with individuals, this means any representative or member of staff of the undertaking in question.

2.3 Are there general surveillance powers (e.g. bugging)?

The Competition Act enables the NCC to monitor the fulfilment of obligations, resolutions and decisions adopted there under. Monitoring shall be carried out under the terms established by regulations and by resolutions of the NCC itself.

The Competition Act does not include any provision regarding bugging. It is worth mentioning that all powers of investigation (e.g. bugging) are subject to compliance with the constitutional and jurisdictional rules.

2.4 Are there any other significant powers of investigation?

The Royal Decree points out that the NCC personnel may be accompanied by experts or specialists (e.g. experts in information technologies) duly authorised by the Director of Investigation.

2.5 Who will carry out searches of business and/or residential premises and will they wait for legal advisors to arrive?

The entries made into business and residential premises will be carried out by NCC personnel duly authorised by the Director of Investigation acting as agent of the authority with the corresponding judicial authorisation in the event the affected party fails to give his consent (in conformity with the European Court of Justice case law, namely Dow Chemical Judgement of 17 October 1989).

Inspections of private domiciles will only take place in cases where there are well founded indications that books or other documents may be found which can be used to prove a serious or very serious infringement.

In principle the NCC personnel are not bound to wait for any legal advisor in order to start searching.

2.6 Is in-house legal advice protected by the rules of privilege?

Spanish legislation and case law do not explain explicitly whether in-house legal advice is protected by the principle of Legal privilege or not. Nevertheless, even though there have not been Spanish cases recognising Legal privilege for in-house counsel, pursuant to a decision of 22 July 2002 of the former Spanish Competition Tribunal, it appears that the Spanish practice would be in line with the EC practice (Akzo Nobel, decision of the European CFI of 12 December 2007, appealed before the ECJ on 3 March 2008) not covering in-house counsel by Legal Professional Privilege.

2.7 Other material limitations of the investigatory powers to safeguard the rights of defence of companies and/or individuals under investigation.

The exercise of the power of interviewing individuals and entering premises, private homes, land and means of transport shall require the prior express consent of the affected party or, failing this, judicial authorisation.

The investigations carried out by the NCC personnel are restricted to the concerned matter.

2.8 Are there sanctions for the obstruction of investigations? If so, have these ever been used?

The Competition Act considers the following to be an obstruction of investigation: (i) the lack of submission and the incorrect, misleading or incomplete submission of documents requested by the NCC; (ii) the refusal to answer or answers that are incomplete, inexact or misleading to the questions formulated by the NCC; and (iii) breaking seals affixed by the NCC personnel.

These infringements will be treated as minor infringements and sanctioned with a fine of up to 1% of the total turnover of the undertaking concerned and in the event it is not possible to make such a calculation with a fine of between €100,000 and €500,000. In the decision of 24 July 2008 "CASER-2", the CNC condemned an insurance company for obstruction of inspection causing delay and ordered them to pay a fine of €133.500.

3 Sanctions on Companies and Individuals

3.1 What are the sanctions for companies?

For the first time, the Competition Act includes a classification of infringements depending on seriousness (minor, serious and very serious). Cartels between competing undertakings are classified as very serious and vertical agreements as serious.

The fine will depend on the seriousness of the infringement, and the maximum fine will amount up to 10 per cent of total turnover. When turnover cannot be calculated, the Council can impose a fine of up to €10 million.

The Competition Act sets out the criteria that are taken into account when calculating the exact amount of the fine (scope and characteristics of the affected market; market shares of responsible undertakings; scope of the infringement; duration; effects of the breach on consumers or any other undertaking; unlawful profit). The Act also lists a series of mitigating and aggravating factors.

The Competition Act states that the NCC will also be able to punish the participants of any group or association of enterprises. In the event that an association does not have sufficient funds to pay the fine, the members of the association will be held liable. Payment of the fine can be demanded from any of the member companies whose representatives are members of the government bodies of the association in question or, alternatively, any member of the association operating in the market in which the infringement took place.

Subsidiaries may also be forced to pay for conduct carried out by their parent company.

The Competition Act establishes a general threshold of 10% of total turnover for companies belonging to associations which committed infringements, regardless of whether the infringement was minor, serious or very serious.

The NCC has recently published draft guidelines on the method for calculating fines in cartel and abuse of dominant position cases. It is expected that the final version will come into force early 2009.

3.2 What are the sanctions for individuals?

Individuals (i.e. legal representatives or members of the management body) may be subject to a personal fine of up to €60,000.

3.3 What are the applicable limitation periods?

As of the day when the infringement was committed or ceased (in the case of continuous infringements), the limitation periods are four years for very serious infringements, 2 years for serious infringements and 1 year for minor ones.

Likewise, the Competition Act lays down two cases in which the limitation period may be interrupted (by any act of the Administration with formal learning of the interested party intending to comply with the Act and by the acts carried out by the interested parties complying with the corresponding resolutions).

3.4 Can a company pay the legal costs and/or financial penalties imposed on a former or current employee?

Spanish law does not expressly include any provision in this respect; therefore companies are not prevented from doing so.

4 Leniency for Companies

4.1 Is there a leniency programme for companies? If so, please provide brief details.

One of the major changes introduced by the Competition Act is the introduction of a leniency system both for total immunity and reduction of the amount of fines in cartel cases. This system has been implemented by the Royal Decree, which regulates the procedures. Immunity is reserved for the first company or individual who provides evidence which, in the NCC view, will enable it to carry out an inspection or to find an infringement of article 1. Those who have adopted measures obliging other undertakings to participate in the infringement are excluded from claiming immunity. In addition, the applicant is required to: cooperate fully, on a continuous basis and expeditiously throughout the investigation; end its involvement in the alleged cartel immediately following its application, except for what would, in the NCC's view, be reasonably necessary to preserve the effectiveness of the inspections; not destroy relevant evidence relating to its application; and not disclose to third parties other than the European Commission or any other national authorities its intention to submit an application or its content.

Companies or individuals who subsequently provide additional evidence may have their fines reduced by up to 30 per cent (see question 4.6). Reduction can be granted when the undertaking provides the NCC with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the NCC's possession. Furthermore, the applicant must meet the cumulative conditions set out above. If the applicant for a reduction of a fine submits evidence which allows for the establishment of additional facts with a direct bearing on the amount of the fine, the NCC will take such additional facts into account when setting the fine to be imposed on the undertaking which provided this evidence.

Leniency applications may also be submitted before the regional competition authorities in regions where a leniency system is in place. The regional competition authorities shall communicate to the NCC all leniency applications submitted to it.

Legal representatives or members of management bodies who have participated in the alleged infringement will also benefit from immunity and reduction of fines granted to a company provided they cooperate with the NCC.

When more than one Member State is affected by the infringement and, subsequently, more than one Competition Authority is well placed to act against the infringement, the Commission encourages applying for leniency to all Competition Authorities affected. The European Competition Network Model Leniency programme was launched in order to avoid lack of application to all NCAs affected as a result of discrepancies between the existing leniency programmes within the ECN. Its aim is to harmonise leniency programmes throughout the Community.

In those cases where the Commission is particularly well placed to deal with a case (those affecting three Member States or more) the applicant filing for immunity with the Commission may file summary applications with any NCAs which might also be well placed to act.

4.2 Is there a 'marker' system and, if so, what is required to obtain a marker?

The Royal Decree provides a "marker" granted by the Directorate for Investigation; a prior reasoned request from the applicant for exemption provides the means of which the filing date for the application will be considered as the initial date of the marker application.

Nevertheless, in view of obtaining the marker, it is necessary to provide the Directorate with the necessary information required for the normal exemption application (applicant and cartel participants' name and address, description of the cartel, applications to other competition authorities) except the evidence relating to the cartel which might be presented subsequently in order to give the applicant time to gather more information.

4.3 Can applications be made orally (to minimise any subsequent disclosure risks in the context of civil damages follow-on litigation)?

In order to ensure the effectiveness of the leniency system, the Competition Act establishes that the NCC cannot provide the Commercial Courts with the information obtained via the immunity or reduction of fines applications. This provision affords some protection to applicants in case of damages actions.

At the applicant's request, both exemption and reduction of fines may be submitted orally, accompanied by the relevant information and evidence, recorded at the NCC premises, with a transcript thereof being entered in the register.

The NCC agrees that only the interested parties may have access to the transcript. Copies of the oral submission may not be made either mechanically or electronically.

4.4 To what extent will a leniency application be treated confidentially and for how long?

The fact of filing the application is confidential. A special separate record of all documents and data deemed to be confidential (including the applicant's identity) will be organised. However, the interested parties have access to all non-confidential information necessary for responding to the statement of objections (with exception of obtaining copies of any applicant's oral statement). The Competition Act does not specify how long the leniency application will be treated as confidential for.

4.5 At what point does the 'continuous cooperation' requirement cease to apply?

The Competition Act requires full, continuous and expeditious cooperation of the leniency applicant throughout the administrative investigation procedure together with other conditions (bring to an end the alleged conduct, not destroy evidence not disclose information to third parties and not to have obliged other parties to take part in the infringement) in order to be able to benefit from exemption or reduction of fines. However, although the Competition Act does not expressly contain any provision regarding the termination of the obligation of "continuous cooperation", the Royal Decree states in a general way that cooperation should take place over the entire course of the proceedings.

4.6 Is there a 'leniency plus' or 'penalty plus' policy?

Reduction of fines is based on a percentage based system depending on the timing of the provision of information: by 30 per cent to 50 per cent reduction for the first undertaking to provide significant added value; 20 per cent to 30 per cent reduction for the second; and a maximum reduction of up to 20 per cent for the subsequent undertakings.

5 Whistle-blowing Procedures for Individuals

5.1 Are there procedures for individuals to report cartel conduct independently of their employer? If so, please specify.

The Competition Act expressly states that the exemption granted to an undertaking shall also benefit its legal representatives or the persons comprising the management bodies providing they have collaborated with the NCC. However, neither the Competition Act nor the Royal Decree expressly provide for the opposite case, being the "whistle-blower". This might be understood in such a way that in cases where an employee reports cartel conduct independently of his employer, he alone will benefit from the exemption and not the undertaking. To date, we are not aware of any whistle-blowing procedures brought before the NCC.

6 Plea Bargaining Arrangements

6.1 Are there any early resolution, settlement or plea bargaining procedures (other than leniency)?

Following the proposal of the Directorate, the Council may terminate proceedings concerning sanctions when the offenders propose commitments which put to an end the anticompetitive effects of their conduct. The period during which commitments may be submitted has been extended and the procedure is more flexible now. In any event, the parties may offer commitments at any time before the referral by the Directorate of its proposal report to the Council, whose adoption is not conditional on the agreement of the rest of the interested parties in the proceedings. These commitments shall be binding on the offenders.

To date, we are not aware of any settlement procedures having taken place.

7 Appeal Process

7.1 What is the appeal process?

The resolutions and acts of the Directorate leading to nondefendable or irreparable damage can be appealed before the Council within 10 days (administrative appeal). The resolutions and acts issued by the Chairman and Council may be appealed before the Administrative Courtroom of the National Audience within two months (judicial appeal) and in a second review appeal under certain particular cases (e.g. amount of fines) before the Chamber for Contentious Administrative Proceedings of the Supreme Court.

7.2 Does the appeal process allow for the cross-examination of witnesses?

The Competition Act establishes no specific rules regarding the cross-examination of witnesses during the appeal process. The rules governing the Common Administrative Process (Law 30/92) need to be applied and, subsequently, the regulation for the Contentious Administrative jurisdiction (Law 29/1998).

8 Damages Actions

8.1 What are the procedures for civil damages actions for loss suffered as a result of cartel conduct?

Pursuant to the Competition Act and Judiciary Act 6/1985, the Mercantile Courts (already competent for the enforcement of article 81 and 82 EC according to the Regulation 1/2003) for the first time have jurisdiction in civil actions concerning the private enforcement of Articles 1 (cartel prohibition) and 2 (abuse of dominant position) of the Competition Act.

The interested parties may bring a complaint before the Mercantile Courts claiming compensatory damages for any loss suffered as a consequence of anticompetitive cartel conduct without there necessarily being a prior firm decision of the NCC declaring the existence of a cartel law infringement.

8.2 Do your procedural rules allow for class-action or representative claims?

In principle, under Spanish law class-actions as such are not available.

The law of civil procedure recognises the right of consumers and user groups who have suffered loss deriving from cartel conduct to bring a claim for compensation when the individuals are determined or easily determinable. Where collective interests are defended before a Court, it will be essential to demonstrate that all the necessary steps have been taken in order to identify all the interested parties represented, so that they can intervene in the process. When the consumers or users are undetermined or not easily determinable, only the statutory users and consumers association are able to bring a claim for damages.

In order to avoid abusive claims on behalf of user groups, only those affected by the infringement in question will be allowed to file a claim (e.g. a consumer group for food products would not be allowed to file a claim against a prohibited practice in the car sector).

According to Spanish law, affected groups may also bring a joint action (for instance an association of companies claiming damages after the abuse of dominant position by a competitor).

Only the parties represented during the proceedings will be affected by the judgment.

8.3 What are the applicable limitation periods?

In the case of actions based on non-contractual obligations, the applicable limitation period one year since the injured party was aware of the harm (article 1968 Civil Code). Under the former Competition Act, in order to take account of when the party has become aware of the harm, it was necessary to wait for a firm decision by the Competition Authority. However, nowadays the Mercantile Courts may directly apply the competition provisions and consequently award compensation for damages. Therefore, the one year limitation period effectively starts to count from the moment the party is aware of the harm. There is no settled case law, however, according to some authors, this "awareness" must be definitive and thus, if there is an ongoing investigation or an appeal of a competition authority decision, the one year period does not start to run until the decision finding harm becomes definitive. On the contrary, in the case of actions based on contractual obligations, there is no time limit for an agreement to be considered null and void.

8.4 What are the cost rules for civil damages follow-on claims in cartel cases?

Since no specific rules are contained in the Spanish Competition Act, the regulations contained in the Spanish Civil Procedure Act will apply. According to article 241 of said Act, each party will pay their own costs, unless the Court orders differently (usually when the Court accepts all the other party's claims).

8.5 Have there been any successful follow-on or stand alone civil damages claims for cartel conduct?

As the follow-on rule applied under the former Competition Act required a firm prior decision (not subject to appeal) of the Competition Authority, it was difficult for private parties to bring actions based on antitrust infringement proceedings since a final decision might only be available after several years.

There have only been a few (if not only one) successful follow-on antitrust actions before the Spanish Courts (e.g. Court of First Instance of Madrid of 7 June 2005 Antena 3 against the Spanish Professional Football League condemning the LNP to pay €25.5 million. It took almost 15 years to complete the whole procedure. However it was appealed before the Provincial Court of Madrid, decision of 18 December 2006, which rejected the initial argument that the lost profit was not properly and rigorously proved).

It is worth mentioning the Judgment of the Fifth Mercantile Court of Madrid of 11 November 2005 "Telefónica case" (subsequently appealed and confirmed before the Provincial Court of Madrid in its decision of 25 May 2006). In this Judgment, a successful damages claim (€639,003) was brought against Telefonica for its infringement of article 82 EC. The proceedings before the Mercatile Court took less than 10 months to complete. (At that time, according to Regulation 1/2003 articles 81 and 82 EC were already enforceable by the Mercantile Courts.)

Under the current Competition Act, individuals may bring an action for antitrust infringements before the Mercantile Courts. Therefore, the number of successful civil damages claims is expected to increase significantly in the near future.

9 Miscellaneous

9.1 Provide brief details of significant recent or imminent statutory or other developments in the field of cartels and leniency.

The Royal Decree recently came into force on the 28 February 2008 implementing some essential aspects of the Competition Act, among them the leniency system laid down in article 65 and 66. The Competition Act introduced for the first time a leniency system in Spain for both total immunity and reduction of fines in cartel cases. However the operation of the new leniency system was conditional on the entry into force of the Royal Decree, which took place on the 22 February 2008.

On the first day of the operation of the new leniency system in Spain, 6 leniency applications were submitted.

9.2 Please mention any other issues of particular interest in Spain not covered by the above.

The Spanish enforcement system is supplemented by Law 1/2002 on the coordination of competencies between central and regional bodies, adopted in response to a Constitutional Court judgment, which held that regional governments are also competent in the field of enforcement.

Pursuant to Law 1/2002 the regional governments in Spain are entitled to enforce the antitrust provisions of the Spanish Competition Act when the effects of the prohibited conduct are restricted to the region concerned. In case the cartel or abusive behaviour has effects beyond the territory of a single region, the NCC will be competent.

Besides, the NCC will be competent to enforce the antitrust provisions in regions which have not set up their own regional competition authorities. Up to date, only the following regions have instituted an autonomous competition authority: Andalusia; Galicia; Castile and Leon; Catalonian; Community of Madrid; and the Basque Country.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.