Spain

• Pages: 339-357

339

Chapter XI

SPAIN

A. Sources and Basics of Spanish Antitrust Law

Competition law in Spain, a member state of the European Union,

exists both at the Spanish level and at the EU level. EU competition law,

and in particular Articles 101 and 102 of the Treaty on the F unctioning

of the European Union (TFEU),1 are described in detail in the European

Union chapter.

Spanish competition law is set out in Law 15/2007 on the Defense

of Competition Act (Competition Act)2 and applies to conduct affecting

trade within Spain, such as restrictive practices, unilateral conduct,

merger control, and unfair competition. The Competition Act was

implemented by Royal Decree 261/2008 (Implementing Regulation)3 and

exists in parallel to the provisions of the EU Treaty and other EU

legislation.4

The Competition Act is closely modeled after Articles 101 and 102

of the TFEU. The Spanish antitrust authority, the Comisión Nacional de

la Competencia (CNC), as well as courts enforcing the Competition Act

normally follow the principles of the European Commission

(Commission) and are bound to follow precedent established by the

European Court of Justice (ECJ) and the General Court (CG) on antitrust

matters.5

Much of what has been discussed in the European Union chapter is

therefore also relevant to Spanish competition law. However, because of

the two-tiered structure of competition law as it applies in Spain, parties

to intellectual property (IP) transactions always should confirm their EU

analysis in light of the Spanish domestic competition law if the

agreement may affect Spanish commerce.

1. Articles 101 and 102 of the TFEU are identical to the text of Articles 81

and 82 of the EC Treaty, which was amended and renumbered by the

Treaty of Lisbon effective December 1, 2009.

2. Where this chapter refers to Articles without citing a source, such

reference is to the Competition Act. Competition Act (B.O.E. 2007, 159).

3. Competition Act Implementing Regulation (B.O.E. 2008, 20).

4. See supra Ch. VI.A.3 (“The European Union”).

5. Id.

340 Antitrust Issues in International IP Licensing Transactions

1. Agreements that Restrict Competition

Article 1 of the Competition Act contains provisions regulating the

national equivalent of Article 101 of the TFEU. It pro hibits any

agreement, decision, or recommendation, or any concerted or consciously

parallel practice between businesses that, by its object or effect, impedes

or hinders competition in a market, or a part of a market, in Spain.6

Agreements prohibited by Article 1 include, among others, price-fixing

or market-sharing arrangements as well as any other agreement that

restricts competition.7

The Competition Act provides for block exemptions, but to date,

only one e xemption has been adopted, an exemption covering certain

agreements between companies relating to the exchange of credit

information.8 Exemptions are not granted to price-fixing and other types

of cartel behavior because such actions are hard-core offenses under the

Competition Act. In addition, EU Block Exemptions apply in Spain by

virtue of Article 1(4).9

The Competition Act and the Implementation Regulation set out an

exemption for de minimis conduct based on the same market share

thresholds as applied in the EU competition Law.10 However, certain

6. The prohibition applies to agreements between competitors as well as

those between non-competitors.

7. Similar to Article 101 of the TFEU, Article 1 provides for a non-

exhaustive list of anticompetitive agreements that prohibits, in addition to

price-fixing and market sharing: (i) applying dissimilar conditions to

equivalent transactions with other trading parties, thereby placing them at

a competitive disadvantage; (ii) limiting or controlling production,

markets, technical developments or investments; and (iii) making the

conclusion of contracts subject to acceptance by other parties of

supplementary obligations not connected to the subject matter of the

contract in question.

8. Reglamento de exencion de determinadas categorias de acuerdos de

intercambio de informacion sobre morosidad (Regulation on the

exemption of certain categories on late payments information exchange

agreements) (B.O.E. 2006, 129).

9. In particular, Article 1(4) states that the prohibition laid down in Article 1

shall not be applied to agreements that comply with the requirements set

forth in the EU Block Exemptions, even in cases where the agreement

does not affect trade between the EU member states (e.g., an agreement

that only concerns the Spanish market).

10. Art. 1 of the Competition Act Implementing Regulation (B.O.E. 2008,

20).