11 February 2016

High Court of Spain annuls transport cartel fines totalling €43 million on procedural grounds

Some of the highest competition law fines in Spanish history, taken in aggregate, have been held to be unlawful by the Spanish High Court on procedural grounds. On 27 September 2013, the Spanish Competition Commission, now the National Commission of Markets and Competition (the Authority), issued six transport shipping container associations and the Valencia Port Authority with fines totalling €43 million for engaging in a transport cartel, but a decision was announced on 25 January 2016 that the alleged cartelists had been successful in their appeal against the fines.

The Authority initiated its investigation on 14 June 2011. Under Spanish competition law, a cartel investigation, once opened, must be concluded within 18 months. The clock may be stopped in certain circumstances, for example, while the Authority is awaiting responses to requests for information. The Authority purported to make use of such a suspension of time on six separate occasions, which would have resulted in an extension of the deadline for a decision by 296 days, from 14 December 2012 to 6 October 2013. Ultimately, the decision was taken on 27 September 2013.

The court held that suspensions of time were possible before the original deadline of 14 December 2012 had passed, but the Authority was not empowered to issue any further suspensions of time subsequent to this deadline. This meant that only three of the six suspensions of time were held to be valid and the Authority had therefore failed to issue a decision within the statutory deadline.

A further procedural issue identified by the court was that the Authority had only taken account of working days when calculating any extensions of time due to suspensions, when, in fact, weekends and public holidays should have been included in such calculation.

This may, however, only amount to a pyrrhic victory for the alleged cartelists as, under Spanish law, the Authority is empowered to start an investigation afresh in cases where a competition decision has been annulled merely due to procedural reasons.

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