Spain
Answer ... Investigation proceedings are initiated by the Competition Directorate of the Spanish Competition Authority (CNMC) (or the equivalent regional body in cases affecting its jurisdiction) ex officio, by means of non-binding complaint from a third party or following a leniency application (see question 5).
Before the formal opening of the proceedings, the Competition Directorate will carry out a preliminary investigation in order to determine whether there are sufficient indicia that an infringement has occurred. During this preliminary phase, which is unlimited in duration, the Competition Directorate may carry out unannounced inspections (so-called ‘dawn raids’) and gather information by issuing information requests.
If the Competition Directorate considers that there is reasonable evidence of prohibited conduct, it will formally initiate penalty proceedings. This decision will be notified to the interested parties.
Spain
Answer ... According to Act 3/2013 on the creation of the CNMC, the CNMC may carry out unannounced inspections and issue information requests.
With regard to inspections, the CNMC may conduct as many inspections as necessary at the premises of companies and associations of companies. The CNMC may also carry out unannounced inspections at the homes of directors, managers and other members of staff of the companies and associations concerned. CNMC officials are empowered to:
- access any premises, facilities, land or means of transport belonging to companies and associations of companies, and the private residences of entrepreneurs, directors and other members of company staff;
- check the books, registers and other documents relating to the activity in question, regardless of format;
- make or obtain copies or extracts (in any format) of such books or documents;
- retain such books or documents for a maximum period of 10 days;
- seal all premises, books or documents and other company property for the time and to the extent necessary for the inspection; and
- ask any representatives or members of staff at the company or association of companies for explanations regarding acts or documents relating to the scope and purpose of the inspection and to record their answer.
In addition, the CNMC is empowered to require any natural or legal person, as well as the public administration, to provide in a timely manner all data and information that might be necessary in order to detect a cartel.
Spain
Answer ... The CNMC cooperates with the European Commission and national competition authorities from EU member states through the European Competition Network. In this regard, the CNMC may exchange any information (including confidential information) with any other national competition authorities within the European Union, as well as with the European Commission. This cooperation often takes place where Articles 101 and 102 of the Treaty on the Functioning of the European Union are applicable.
Spain
Answer ... Yes. Third parties may request the CNMC to be considered as interested parties in a proceeding. Once they are considered as interested parties, they can access the case file and participate in the penalty proceedings, provide evidence and file written submissions.
Spain
Answer ... According to Act 3/2013 on the creation of the CNMC, the CNMC may carry out unannounced inspections and issue information requests.
Based on the requirement to respect fundamental rights in conducting CNMC inspections, the legal understanding is that the inspection cannot extend to documentation or information (to be used only for the purposes set forth in the Competition Act) that:
- is outside the objective scope of the inspection as defined in the order or court order authorising entry to the company premises or other properties belonging to the company, or to the premises of any company members, where necessary (so-called ‘fishing expeditions’). By way of example, information or documentation relating to the company’s activities in sectors other than those included in the order or court order authorising the inspection are considered to be outside the objective scope;
- is employee information of a personal nature; or
- is protected by attorney-client privilege. The protection of professional secrecy in attorney-client relations does not apply where an employment relationship exists between the counsel and the company under investigation (ie, in-house counsel).
In order to conduct an unannounced inspection, the CNMC needs the express prior consent of the affected company or, failing, that, appropriate judicial authorisation. In addition, CNMC officials must inform the undertaking whether a court order authorising entry has been denied. At the end of the unannounced inspection, the CNMC officials must draw up a report on their actions.
Requests for information must be reasoned and proportionate to the aim pursued. To that end, the content of such requests must be detailed, specifying, in a reasoned manner, the relevance of the information requested and the use to be made of such information.
Information obtained by the CNMC that is of a confidential nature may be transferred only to the competent ministry, the autonomous communities, the European Commission and the authorities of other EU member states, as well as to the courts in the corresponding legal proceedings. Likewise, anyone who learns of this information must keep it confidential.
Finally, the CNMC must oversee compliance with the obligations provided for in the Competition Act.
Spain
Answer ... As regards inspections, it is up to the company – at the time of the dawn raid or thereafter – to highlight the specific documents that it considers may fall under any exceptions and explain why the CNMC cannot obtain such documents.
Companies and associations of companies must allow inspections authorised by the Competition Directorate or any other competent body. Company employees and representatives must respond to questions asked by CNMC officials, as long as they are within the scope of the dawn raid and would not result in self-incriminating answers.
In this regard, as well as in the event of a request for information, all natural or legal persons and the bodies of any public administrations are subject to a duty to cooperate with the CNMC and to provide, at its request and in due time, all data and information that they may have which may be necessary for the detection of cartels.
Failure to cooperate is considered a minor infringement of the Competition Act that may be penalised by a fine of up to 1% of the total turnover of the entity concerned.
Employees who are aware of the unannounced inspection should not discuss it with anyone outside the investigated entity (and especially not with clients, suppliers or competitors).
Spain
Answer ... Although EU case law does not apply to investigations which are subject to Spanish law, both the CNMC and the Spanish courts tend to apply this case law in relation to inspections and consider that in-house legal advice is not covered by legal professional privilege. This is not the case for the advice of external counsel, which is protected under legal privilege based on the right to a defence and assistance by a lawyer under Article 24.2 of the Constitution.
Spain
Answer ... The CNMC will publish the following information on its website:
- details of its unannounced inspections, keeping confidential the identities of the investigated entities;
- the formal commencement of penalty proceedings identifying the affected companies; and
- its final decision in the penalty proceedings, once the interested parties have been notified and any confidentiality issues have been resolved.
Before publishing the above information, the CNMC will provide the entities concerned with an opportunity to identify any sensitive commercial information that may qualify as confidential and will then decide on this request. If the CNMC does not grant the confidentiality request, the entities concerned may appeal the decision before the National Court.
All leniency applications and their contents will be kept confidential in a separate file until the statement of objections is issued. Moreover, the public version of the final decision on the penalty proceedings will not refer to the statements submitted by the leniency applicants.