In brief

“Communication 1/2023, of 13 June on the criteria that shall govern the prohibition for companies that distort competition to enter into contracts with the public sector by the National Commission for Markets and Competition” (the “Communication“) has been approved. The Communication sets out the criteria that will guide the CNMC when determining the prohibition to contract with the Public Sector and the scope of the prohibition. The CNMC will follow the criteria set out in the Communication in its future infringement decisions. 

In depth 

The key points of the Communication are summarized below:

1. Any anti-competitive conduct that is found to be a serious infringement (or very serious infringement) of Competition Law in accordance with the Spanish Competition Act may lead to a prohibition on contracting with the Public Sector. The following factors are not relevant when determining whether to impose such a prohibition: (i) whether the infringement took place inside or outside of a public procurement context and (ii) whether the sanctioned party does not regularly participate in public tenders.
2. The reference for establishing the geographic and product scope of the prohibition shall be the markets where the infringement has taken place. However, it may also extend to a market other than that of the particular infringement depending on the degree of involvement and active participation of other entities of the same group of companies in the sanctioned practices, including the parent companies liable for the infringement.
3. It is worth highlighting the inclusion of a provision in the Communication that foresees the possibility for the parties to submit allegations on the scope and duration of the prohibition on contracting with the Public Sector. 

It is important to note that companies involved in an infringement of Competition Law will be exempted from the prohibition to contract with the Public Sector in the following circumstances:

1. They are leniency applicants (in which case the exemption will apply automatically)
2. They demonstrate the existence of an antitrust compliance programme that will be effective in preventing future infringements (in which case the exemption will be subject to the CNMC’s validation of the compliance programme). In particular, the Communication highlights the 2020 “Guidelines on Antitrust Compliance Programmes” of the CNMC (the “Guidelines“) as a basis for the CNMC to assess the effectiveness of such policies.

How can we help?

Baker McKenzie has expertise in the creation and adaptation of antitrust compliance programmes to the requirements of the Guidelines. We also have extensive experience in establishing parameters of conduct and implementing organizational measures to transfer your company’s commitment to compliance to the day-to-day decision-making process, both for the people who act on behalf of the company and for all employees, enabling restrictive anti-competitive practices to be detected or prevented.

Click here to read the Spanish version.