The national competition authority is the National Competition and Markets Commission (CNMC). The CNMC was created in 2013 bringing together under a single roof the pre-existing National Competition Commission and various national sector regulatory authorities (energy, telecommunications and media, railways, postal, airports). This had an impact over mergers in regulated sectors, hitherto subject to the need for a cross-report from the relevant regulatory authority. The creation of the CNMC eliminated the need for cross-reports from regulators in industry sectors that are now dealt with by the CNMC. Hence, the CNMC modified its Notice on Short Form Merger Filings in October 2015, to eliminate the rule that short-form merger filings were not available when a cross-report from the competent regulatory authority was required. Reduced form filings are now also possible in industry sectors where the CNMC has authority (although standard merger filing forms will still be required in industry sectors where the CNMC has no authority, such as banking mergers).4
The CNMC has a dual structure, which reflects on its regulatory and competition enforcement rules. A collegiate body, the Council, is the decision-making organ of the CNMC. The Council has 10 members divided into two chambers of five members each, one chamber dealing with competition matters and presided over by the president of the CNMC; the other dealing with regulatory supervision and led by the vice president. The chambers may meet separately or jointly in a plenary session. The president has the deciding vote in the case of a tied vote at the Council.
In the area of merger control, the Council of Ministers (Cabinet) has a role in problematic mergers where the CNMC either considers prohibition or submission to conditions. This role of the Council of Ministers is further described below.
Appointment of the CNMC Council members, including the president and vice president, is entrusted to the government upon proposal of the Ministry of Economy. CNMC Council members are appointed for non-renewable terms of six years. Renewal of various Council members, including the president, who is acting on a prorogued mandate, is still due at the time of writing.
The bulk of the CNMC is made up of the various directorates, which deal with the investigations and provide the substantial back office research and knowledge required for the day-to-day work of the CNMC. The Competition Directorate deals with the enforcement of competition law and is, in turn, divided into various sub-directorates of industry and energy, information society, services, leniency and cartels and, finally, a monitoring sub-directorate. There is no specific merger task force, which means that mergers are allocated internally. The Competition Directorate is a professional office with career civil servants who act impartially and with a business-like attitude when addressing companies' issues.
iii Pre-merger notification and approval
Which transactions qualify as a merger?
A concentration takes place when a stable change of control of an undertaking takes place as a result of a merger of two previously independent undertakings; an acquisition of control of an undertaking or a part thereof by another undertaking; or the creation of a joint venture or the acquisition of joint control of an undertaking, provided the joint venture is full-function and performs its economic activity on a long-term basis.
An acquisition of control results from contracts, rights or any other means that, taking into account the circumstances of fact and law, confer the possibility of exercising decisive influence over the acquired undertaking. The concept of control encompasses ownership of shares or assets, contracts, rights or other means that provide decisive influence over the composition, deliberations or decisions of the governing organs of the company.
Purely internal restructurings within a company group do not constitute a change of control. Likewise, the acquisition of control must involve a business having access to the market and therefore a business to which a market share or market turnover can be assigned. Hence an acquisition of a business previously providing an internal service solely to the selling group will not amount to a merger, provided that no sales from the acquired business take place to third parties within a start-up period from the acquisition (start-up period of generally three years). Temporary shareholdings by financial entities, holding companies and receiverships are excluded in the circumstances described by the Competition Act. Shifting alliances have, in some instances, received a particular treatment in Spain, distinct from what could generally be acceptable under EU law and the European Commission Consolidated Jurisdictional Notice.
Thresholds triggering merger control in Spain
The Competition Act provides that concentrations that meet either one of the following thresholds must be notified to the CNMC for merger control purposes:
- that, as a result of the concentration, a market share of 30 per cent or more of the relevant product market in Spain, or a relevant geographic market within Spain, is acquired or increased. A de minimis exemption applies if:
- the turnover of the acquired undertaking in Spain does not exceed €10 million; and
- the concentration does not lead to acquiring or increasing a market share of 50 per cent or higher in the relevant product or service market or in any other market affected by the concentration; or
- that the aggregated turnover in Spain of the parties to the concentration exceeds €240 million in the previous accounting year, if at least two of the parties to the concentration each have an individual turnover exceeding €60 million in Spain.
If either one of the above thresholds is met, filing is mandatory and the concentration cannot be implemented prior to having been authorised. The Competition Act provides for a derogation system that enables total or partial closing of a merger prior to having gained merger control clearance. This is further discussed in Section III.
In our experience, the market share threshold poses some practical questions; for instance, the market share threshold can be met if the target company alone has a 30 per cent (or 50 per cent, as the case may be) share in a relevant market, even if the acquirer has a zero per cent market share, although this would be a candidate for a short-form merger filing and quick review. Market definition must be carried out on the basis of existing merger control practice and precedents persuasive in Spain, including those of the CNMC. Generally, the market share threshold need not be problematic; it can be dealt with expediently and in a constructive fashion.
Consequences of failing to notify a reportable transaction
Closing a transaction without having obtained the required merger control approval is a serious infringement under the Competition Act. The CNMC actively monitors gun-jumping, including that of transactions that had to be reported pursuant to the market share threshold, which the CNMC has shown it has will to enforce (with the majority of gun-jumping investigations being triggered by the market share threshold). Closing a reportable transaction without having gained merger control approval may carry fines of up to 5 per cent of the turnover of the acquiring group.5 Closing in contravention of the terms of a merger control decision may result in fines of up to 10 per cent of turnover. Fines are imposed following a separate administrative investigation on gun-jumping. Furthermore, companies condemned for gun-jumping may potentially be disqualified from supplying goods and services to public administrations under the public procurement laws.
A filing fee must be paid and proof of payment included as part of the merger filing. The amount of the fee is determined in an Annex to Law 3/2013 of 4 June 2013 on the creation of the CNMC. The amount of the fee may be updated annually and is currently as follows:
- €5,502.15 when the aggregate turnover of the merging parties is equal to or less than €240 million;
- €11,004.31 when the aggregate turnover of the merging parties is between €240 million and €480 million;
- €22,008.62 when the aggregate turnover of the merging parties is between €240 million and €3 billion; and
- a fixed amount of €43,944 when the aggregate turnover of the merging parties is above €3 billion, adding €11,004.31 to the fee for each additional €3 billion of aggregate turnover of the parties, up to a maximum fee amount of €109,906.
The filing fee for short-form filings is currently €1,545.45.
II YEAR IN REVIEW
Although more active than in some previous years in terms of deal flow, 2019 has been a rather standard year in merger review terms, with two transactions having been subjected to Phase II proceedings. Conversely, we have seen some innovative and interesting Phase I reviews in exciting sectors, including some transactions in the 'new' economy. In addition, the CNMC has been quite proactive in approving merger transactions, even highly problematic ones, in Phase I, when necessary, subject to commitments. The CNMC has also increased its track record of clearing easy transactions well ahead of the Phase I deadline, sometimes in a matter of a few days.
Overall, roughly 89 concentrations were subject to merger control in 20196 in all sectors including online platforms for managing food orders at home, healthcare, manufacture and sale of white cement, the private gaming sector and telecommunications. We set out below some significant merger cases.
i Quirón/Clínica Santa Cristina merger
This matter concerns the acquisition of Clinic Santa Cristina's healthcare business in Albacete by Helios Healthcare Spain SLU (Quirón Group).7 There are only two private hospitals with in-patient care in Albacete: Quirónsalud Albacete, run by Quirón Group, and Health Clinic Santa Cristina, the target in this transaction.
As a result of the acquisition, the only private healthcare competitor in the province of Albacete would disappear. Consequently, Quirón Group would have an unbeatable competitive position, as already confirmed by the market tests applied by the CNMC during Phase I proceedings. Additionally, the market power acquired in the delivery of in-patient healthcare services could reinforce the position of the resulting operator in the delivery of outpatient services. This situation could arise from the fact that patients tend to prefer the whole medical process to be carried out in the same healthcare centre.
The unilateral effects of the merger were compounded by economic, technical and legal barriers to entry, effectively hindering the deployment of new private hospitals in the province of Albacete, at least in the short term.
On the basis of the above, the CNMC considered that an in-depth analysis of the notified operation was necessary, in view of the possible obstacles to the maintenance of effective competition in the market under consideration. Consequently, the Competition Directorate referred the file for Phase II consideration. In Phase II, the concentration was approved subject to a remedy package to safeguard the clinical speciality treatment portfolio and guarantee the supply of healthcare services to all patients at stable prices and quality levels. In particular, the CNMC drew up a statement of facts that identified three potential competition problems:
- commitments were submitted seeking to avoid a reduction in service quality and to ensure the continuation of existing collaboration with public health systems;
- to guarantee the continued collaboration with the public health system, Quirón agreed to provide the Health Service of Castilla-La Mancha the same portfolio of services it currently provides; and committed not to close certain specialities, including those not provided by the public hospital of Albacete and not to lower the quality of care indicators for patients referred from the public health system; and
- finally, regarding the risk that the market would be closed off to other real or potential competitors, Quirón agreed to maintain the legal relationships with those health professionals who were already providing their services in competing hospitals and to guarantee access to the medical professionals who were renting spaces in Quirón.
ii Acquisition of GGSO by CIRSA
These parties overlapped in the private gaming sector, in particular in off-line gaming offerings in the regions of Cataluña, Valencia and Aragon.8 High market shares were identified in Cataluña specifically, for the management of type B machines in food and drink establishments, as well as in arcades and bingo halls. Conditional clearance was granted on condition of eliminating the exclusivity clauses in all contracts signed by the merged entity in Cataluña to enhance competition between the operators of gaming machines within premises. In addition, Cirsa committed to limit the duration of contracts to five years in both food and drink establishments and arcades. Finally, Cirsa committed to close two bingo halls in Barcelona, making those licences available to new entrants.
iii Lyntia's purchase of usage rights for the excess dark fibre network of Iberdrola
This transaction involves Lyntia's acquisition of the right to use the excess capacity of the fibre optic network over which Iberdrola Spain, Iberdrola Distribución Eléctrica and Iberdrola Generación (Iberdrola) have exclusive, long-term ownership or usage rights.9 In addition, Lyntia is acquiring Iberdrola's portfolio of contracts with fibre optic clients.
Iberdrola markets wholesale telecommunications services using fibre optic networks deployed for its own electricity distribution and transmission infrastructure and in networks deployed by third parties, for which it has usage rights. The dark fibre market in Spain is very concentrated (the two main operators, Reintel and Lyntia, account for over 90 per cent of the market) and there are significant barriers to entry.
As a result, the transaction was approved subject to commitments to alleviate the vertical effects (foreclosure) of the merger. Lyntia will not unreasonably terminate existing contracts and will offer to extend existing contracts expiring within 10 years. Likewise, it will offer access, under reasonable conditions and via the different existing commercial methods, to its entire dark fibre network in Spain for a period of five years.
iv Merger of Just Eat and Canary
Both parties are online platforms for managing home food orders. However, while Just Eat operates nationally, Canary only has a presence in the Canary Islands.
This is a good example of a merger in a two-sided market.10 In this case, one obvious issue would be if the resulting platform has many exclusives with restaurants, as this can make it difficult for new operators to enter the market.
The operation strengthened Just Eat, particularly in Las Palmas de Gran Canaria where it would lead the market. However, the CNMC did not expect there to be competition problems for several reasons. First, Canary has been operating in this market for years without any significant innovations compared to other platforms, so this is not an acquisition that would eliminate a new, innovative and thriving competitor. Second, the acquired company is small. Third, the market for such platforms is dynamic, and new companies such as Glovo and Uber Eats have recently entered the market and have achieved significant market shares in a short period of time. Finally, the entry of these new competitors coincided with the commitments that the CNMC approved when it authorised the Just Eat/La Nevera Roja merger.11 The latter commitments (the duration of which is confidential according to the merger decision, but which applies nationally, including within the Canary Islands) were focused on Just Eat's undertaking not to bind restaurants exclusively.
v Merger of MIH Food Delivery Holdings and Just Eat
The CNMC cleared the acquisition with commitments by MIH Food Delivery Holdings, BV (MIH) of Just Eat plc (Just Eat) through a hostile takeover bid.12 The combination would impact the handling of online platforms for managing food orders at home, which are accessed via internet or mobile applications. The market is relatively concentrated and demand is expected to continue growing at significant rates in coming years.
The CNMC analysed the implications of MIH's minority interest (less than 25 per cent) in Delivery Hero and the stake that Delivery Hero has in Glovo (less than 20 per cent). This would result in the buyer of Just Eat having an indirect minority interest in its main competitor in Spain, Glovo. These interests could facilitate MIH's access to information related to Glovo's strategic commercial policy, since directly or indirectly (through Delivery Hero), MIH would have access to the information made available to the board of directors of Just Eat and Glovo, respectively. Likewise, the indirect presence of MIH on the board of directors of the main competitor of Just Eat enables interference in this competitor's business.
Consequently, the transaction was subject to commitments seeking to: (1) guarantee that MIH cannot have access to Delivery Hero or Glovo's sensitive commercial information; (2) prevent MIH from influencing Glovo's strategy in competition with Just Eat in Spain; and (3) prohibit Delivery Hero (and, therefore, Glovo) from accessing Just Eat's sensitive business information.
Cross-ownership restrictions in competing companies are in place in Spain in some concentrated or sensitive industries, such as telecommunications, energy and media.
III THE MERGER CONTROL REGIME
i Waiting periods and time frames
Pre-notification is customary and is advised when possible. Pre-notification is not subject to statutory deadlines. In most cases, two or three weeks should be allowed, although it can take longer if the transaction is complex from a competitive standpoint, or if the CNMC requires additional information to be included in the notification form.
The formal merger control investigation is divided into Phase I and Phase II proceedings. The majority of files are cleared in Phase I, whereas only a fraction are referred to Phase II in-depth analysis.
Phase I proceedings last in principle for one month, counted from the date a complete notification is filed with the CNMC. Where the notifying party submits commitments (this possibility exists during the 20-day period after the filing), the Phase I statutory maximum period is extended by 10 additional days.
The maximum period for Phase II proceedings is two months, counted from the date the CNMC decides to open a Phase II review. The maximum period is extended for 15 additional days if commitments are submitted in Phase II (the notifying party can offer commitments up to 35 days after the start of Phase II proceedings).
In the event of Phase II decisions blocking or imposing obligations, the Minister of Economy is entitled to refer the case to the Council of Ministers within 15 days of the Phase II decision being issued. If referred to it, the Council of Ministers has one month to issue a final decision, which may confirm the Phase II CNMC decision or may authorise the merger, with or without conditions.
All maximum periods can be interrupted by the CNMC in regulated events such as formal information requests.
Due to the covid-19 situation, administrative periods and timelines, including for merger control, are on pause at the time of writing. However, the CNMC has, until recently, been dealing with pre-notifications and meeting merger review deadlines.
ii Parties' ability to accelerate the review procedure, tender offers and hostile transactions
As discussed, pre-notification in practice normally makes the review easier.
The merger cannot be closed prior to having gained the prerequisite merger clearance. It is possible to request a derogation from the suspension effect of the merger filing. This derogation is nowadays very rarely granted. In the past, the exception has been used in limited instances to enable quick closing of a merger in non-problematic geographic areas, while enabling a Phase II review limited to problematic areas (for instance in supermarket, gas station and other mergers with local geographic markets). As a general rule, the CNMC in practice has a preference not to use this derogation procedure, as it entails considerable analysis; rather, where possible, the CNMC prefers to move towards quick merger clearance if the circumstances merit it.
Public offers can be launched including as condition for the validity the merger control clearance. The Competition Act enables launching of a public tender without having gained merger control provided that the CNMC is notified the merger within five days from the formal application for authorisation of the public tender with the Securities Exchange Commission; and that the voting rights are not exercised save when required to preserve the value of an investment, with the authorisation of the CNMC.
Hostile public offers are rare in Spain. Past experience shows that hostile takeovers, particularly in strategic sectors, can be extremely complex. The hostile bid for Endesa launched by Gas Natural in the prior decade was not successful, and competing offers required intervention from the European Commission under Article 21 of the EC Merger Regulation. On that same transaction, the initial merger control authorisation gained by the first bidder (Gas Natural) was frozen by the Supreme Court on interim review.
iii Third-party access to the file and rights to challenge mergers
Third-party access is expressly contemplated in the Competition Act in Phase II merger proceedings. Parties with a legitimate interest have the possibility to access the merger file and submit comments to the statement of objections and proposed commitments. These are normal dynamics in Phase II, where third parties have a relevant role and provide input that help shape the outcome of the merger proceedings.
The law does not foresee the possibility that interested parties have a role in Phase I. Phase I proceedings are confidential and the file cannot be accessed by third parties. However, as there is no express provision banning participation of third parties in Phase I merger proceedings, it is accepted, and has become quite standard, that third parties make representations and submissions to the CNMC regarding a merger also during Phase I merger proceedings. An example of this is the Helios/Quiron merger,13 where the participation of a third party in the proceedings was expressly discussed in the merger decision.
Indeed, the CNMC will listen to third parties concerns and if these have merit, the CNMC should be expected to raise the level of scrutiny of a given merger.
Third parties also play a role in reporting mergers that should have been filed for merger review but were not.14
iv Resolution of authorities' competition concerns, appeals and judicial review
The CNMC should, at least in theory, solve most initial concerns in pre-notification. The CNMC will make use of formal information requests, stopping the clock when necessary. Once the proposed transaction has been formally filed, the CNMC may be keen, depending on the circumstances, to deal with any questions informally, without stopping the clock (particularly if the transaction has been pre-notified).
Merger decisions by the CNMC may be appealed within two months before the High Court. In instances where the Council of Ministers decides on the merger, the Supreme Court is competent to review the merger decision.
v Effect of regulatory review
Mergers reviewed by the CNMC may be reviewed concurrently by other administrative agencies dealing, for instance, with regulatory and licensing issues. The potential friction and lack of coordination between the CNMC and sector regulators has been minimised in some instances in economic sectors where the CNMC also acts as a regulatory authority. In areas such as banking, where the regulator is not within the CNMC, merger review is suspended while the sector regulator completes its review.
IV OTHER STRATEGIC CONSIDERATIONS
Generally speaking, it is far better to pre-notify transactions if at all possible. The CNMC has in the past recommended pre-notification and it clearly does not like that transactions are notified for merger control without pre-notification. Furthermore, pre-notification enables discussion on a preliminary basis on many strategic issues, including the recurrent usage of the short-form filing, occasionally even in situations not expressly foreseen by the applicable regulation.
Another benefit of pre-notification is expected timing for approval. Even though initially pre-notification implies additional delay, in practice the CNMC will reduce the time dedicated to the review and often issue speedier approval if pre-notification has taken place. In non-problematic cases, recent experience shows that the CNMC often grants approval in 10 to 20 days from filing.
It is possible to apply for formal guidance from the CNMC regarding whether or not a change of control arises as a result of the projected merger and the merger thresholds are met. One issue here is the lack of a binding deadline for the CNMC to act on a request for formal guidance, an area that might change in the future.
Merger control is an important tool and the CNMC has, in the past, vigorously investigated and pursued gun-jumping or closing of reportable transactions without having obtained the necessary merger clearance. The CNMC has recently made it clear that it is ready to use its powers to punish individual directors and managers for competition breaches (which has hitherto not materialised in any actual fines to individuals in situations of gun-jumping, a situation that may change). Likewise, new legislation that entered into force recently arguably makes it possible to exclude from public tender those companies that have been condemned for gun-jumping. Specifically, the CNMC has initiated proceedings against Nufri, Sociedad Agraria de Transformación for having closed the acquisition of Grupo Idulleida before gaining merger clearance.15
V OUTLOOK and CONCLUSIONS
The current CNMC is the result of the integration of Spain's main national regulatory authorities in various network industries and regulated sectors into the Competition Authority in 2013 (see Section I). The integration was criticised at the time. In the medium to longer term, it cannot be ruled out that a future legal reform will again separate the national regulatory authorities from the Competition Authority. This possibility has been discussed, although there does not currently appear to be momentum for it.
The CNMC is well aware that the formal guidance procedure enabling it to give clarity on the reportability of a merger is impaired by the lack of a binding deadline. This may perhaps change by dealing with the matter in the new legislation that will possibly be introduced to revert to the previous model of separation between competition enforcer and sector regulators.
The current economic crisis has triggered considerable financial difficulty for many companies in a country where tourism and transportation-related activities are very important to the economy. In this regard, the failing firm defence is acknowledged and used by the CNMC and may well apply to concentrations in the current circumstances, provided it can be appropriately substantiated and evidenced. In the past, the CNMC has invoked the failing firm defence in restrictive circumstances only, and has avoided its use in temporary crisis situations (e.g., the Antena 3/La Sexta merger).16
Another area that overlaps with merger control, and that is directly related to concentrations, is that of foreign direct investment (FDI) screening. In April 2020, the government introduced a new FDI screening regime, which is very broad in scope and which, like merger control, requires clearance prior to the closing of an acquisition, under penalty of fines of up to the consideration of the transaction. At the time of writing, this regime poses serious issues of interpretation, pending the approval of an implementing regulation, so careful advice may be required.
In conclusion, no radical changes are, in principle, to be expected in the merger control arena in Spain, with the qualification of the limited changes likely to arise (primarily but perhaps not exclusively) at the institutional enforcement level if the CNMC goes back to its previous form (with the competition and regulatory authorities separated again). The CNMC or its successor is likely to continue to enforce competition policy vigorously, including merger control laws. Going forward it cannot be ruled out, perhaps, that the CNMC will include individuals in fines for gun-jumping, in line with what is the trend in antitrust enforcement cases, and may also increase the amount of fines, in line with what seems to be a trend at European Commission level and in neighbouring countries such as France.
1 Pedro Callol is a partner at Callol, Coca & Asociados.
2 Law 15/2007 of 3 July 2007 on Competition.
3 Royal Decree 261/2008 of 22 February 2008, approving the Competition Implementing Regulation.
4 CNMC Notice of 21 October 2015 on cases where the short-form filings may be used.
5 In some cases, worldwide turnover of the infringing group has been used as a basis for the calculation of the fine (Decision of 26 January 2010, Abertis/Inarlia, SNC/0003/09). Also, occasionally turnover of both acquirer and target are taken into account for the calculation of the fine (Decision of 22 July 2011, Dorf/Ketal, file SNC 0009/11).
6 At the time of writing, the CNMC had not yet published its review of activities for 2019.
7 Decision of 16 April 2019, Quiron/Clinica Santa Cristina, file C/0966/18.
8 Decision of 30 July 2019, CIRSA/GGSO, file C/1035/19.
9 Decision of 30 July 2019, Lyntia/Activos Iberdrola, file C/1031/19.
10 Decision of 10 September 2019, Just Eat/Canary, file C/1046/19.
11 Decision of 31 March 2016, Just Eat/La Nevera Roja, file C/0730/16.
12 Decision of 5 December 2019, MIH Food Delivery Holdings/Just Eat, file C/1072/19.
13 Decision of 22 December 2016, Helios/Quironsalud, file C/0813/16.
14 For example, Decision of 29 July 2010, Bergé/Maritima Candina, file R/0006/10.
15 Decision of 28 November 2019, Grupo Nufri, file SNC/DC/093/19.
16 Decision of 13 July 2012, Antena 3/La Sexta, file C/0432/12.