La Comisión Nacional de las Mercados y la Competencia (Monografías) (Spanish Edition)

Spain - Comisión Nacional de los Mercados y la Competencia
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However, competitors have been able to submit observations during Phase I on the basis of general administrative law. During Phase II, third-party interventions are formally recognised in different ways:. In addition, and as explained in the answer to question 5. The CNMC may request any information it deems necessary from the undertakings involved in the transaction, any other third party or even any public authority.

As explained in the answer to question 3. If they fail to comply with this request, the CNMC will be entitled to terminate the procedure. In addition, if the notifying parties do not submit the requested information within 10 days, they will not benefit from tacit authorisation see the answer to question 3. The notification is public and the CNMC will publish a reference to the status of the notification on its webpage, as well as the name of the companies, the affected economic sector, and a brief description of the operation.

Confidential information will not be disclosed to third parties. For this purpose, any document which is submitted to the CNMC will be accompanied by a non-confidential version. The parties will have to justify why the extracted information is confidential. If a non-confidential version is sent, the CNMC may consider that all the information may be disclosed to third parties.

Nevertheless, during pre-notification contacts, the parties may submit a confidential draft form in order to clarify the formal or substantive aspects of the concentration see the answer to question 3.

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At the end of Phase I, the CNMC will send the decision and report to the notifying party so that the latter can request the confidentiality of certain information within five working days. If no request is sent within the prescribed time limit, the CNMC may publish the decision and report on its integrity. In the case of a negative or conditional Phase II decision, the Government may intervene.

For that purpose, the Minister for Economy will have to decide whether to refer the case to the Council of Ministers within 15 days of hearing of the decision. The Council of Ministers will then decide within one month whether to confirm the Council decision, modify it or clear the concentration, with or without conditions, on public interest grounds other than competition.

A Phase II clearance decision without conditions is immediately enforceable. On the contrary, a negative or conditional Phase II decision will only be enforceable once the deadlines for the Minister for Economy and Governmental intervention have lapsed. The remedies requested during Phase I may only be accepted when the competition concerns that have arisen are clearly identifiable and easily remediable. In that case the party committed to not bid or supply in new signings for a stipulated period and to provide information to competitors and clients which their supply was going to be shift to natural gas.

Particularly, the parties committed to grant access to the system and provide optional systems to those who request it. Cepsa committed to leave the petrol station out of the operation. In that case, Hypercom decided to sell its Spanish subsidiary to a third company, Klein Partners, in order to avoid any merger competition issues in Spain.

However, the Spanish Authority caught the transaction as it understood that it fell under its jurisdiction, and only cleared the transaction in Phase I after remedies were offered by Verifone. Please describe any relevant procedural steps and deadlines. As explained in the answer to question 5. See the answer to question 5. There are no models for divestiture commitments or trustee mandates. Under the old act, after clearance by the Government subject to conditions, it was usual for the parties to submit an Action Plan within a certain deadline developing the remedies imposed by the Government, which had to be approved by Spanish Competition Authority.

Yes, the parties may complete the merger before the remedies have been complied with, unless the CNMC decides otherwise and includes remedies which require an upfront buyer. The CNMC conducts an enforcement supervision and control procedure, e. In that case, Telecinco failed to submit a plan containing all measures to be adopted on time.

By the judgment of 21 September , the Supreme Court dismissed the appeal on the merits but reduced the fine, applying the principle of proportionality to the calculation of the fine. However, it is possible that the CNMC may accept requests to cancel the commitments in case the circumstances of the market change and the commitments might hinder competition per se.

A clearance decision may cover ancillary restrictions if those are directly related and necessary to the implementation of the concentration. The parties shall request that these are covered in the decision in the notification form. If the ancillary restrictions go beyond what is related and necessary for the implementation of the concentration, the CNMC may decide to leave aside those restrictions from its clearance decision and, therefore, leave open their further scrutiny under the behavioural rules.

A merger clearance can be subject to an appeal by the notifying party or any other interested party. A merger decision by the Council can be challenged before the Audiencia Nacional within two months of notification of the decision.

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A further appeal can be brought before the Spanish Supreme Court. In addition, any other decision adopted during the procedure by the Directorate for Competition can be subject to an appeal by the parties before the Council within 10 days. However, interim relief can be requested. In addition, Spanish competition authorities are members of the International Competition Network. By mid-October , 61 merger filings had been presented that year, all of them cleared without commitments except for three cases, which were cleared with commitments in Phase I.

See question 5. Spain: Merger Control The ICLG to: Merger Control Laws and Regulations covers common issues in merger control laws and regulations — including relevant authorities and legislation, notification and its impact on the transaction timetable, remedies, appeals and enforcement and substantive assessment — in 55 jurisdictions. Chapter content Free access. Relevant Authorities and Legislation.

Transactions Caught by Merger Control Legislation. Notification and its Impact on the Transaction Timetable. Substantive Assessment of the Merger and Outcome of the Process.

Contributing firm. Other chapters for Spain. Your email. Your password. According to CNMC data, out of notifications in , 94 used previous pre-notification contacts with the authorities and 54 transactions were notified using the short-form procedure; 96 transactions were cleared in Phase I without commitments; while five transactions were cleared in Phase I with commitments. What are the risks in completing before clearance is received? Completion can only take place once clearance has been obtained or once the CNMC has granted a derogation from the obligation to suspend see the answer to question 3.

Furthermore, treatment of public bids is now aligned with the EUMR. As already explained in question 3. The form and supporting documents have to be submitted in Spanish. However, in some cases, with prior authorisation or upon request of the Directorate for Competition, a Spanish summary of some lengthy English documents may also be voluntarily presented.

In the case of joint notification, one single form shall be submitted. The following documents must also be submitted with the form: i a copy of the annual reports and management reports of the last financial year of all undertakings concerned; ii a copy of the contracts, agreements that related to the concentration including amendments introduced after the conclusion, and a copy of any authorisations filed with the Securities Commission in the case of a public bid; iii a copy of the receipt of payment of the fee; iv translation of documents in a foreign language or at least of the outstanding points; v a power of attorney if the notifying party ies are represented by lawyers; and vi a copy in electronic format of the formulary and all aforementioned documents.

Are there any informal ways in which the clearance timetable can be speeded up? The CNMC is entitled to request that a concentration candidate for a simplified procedure is notified using the standard form. In such a case, deadlines will only start to run once the standard form is submitted. These new guidelines allow transactions which need an approval by the regulatory authorities which have been merged into the CNMC to use a short form, provided that the concentration meets the requirements for the use of the short form.

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According to the guidelines, the reduction of the one-month deadline in the context of simplified procedure concentrations is reinforced by the fact that the CNMC has made commitments against suspending the one-month deadline through requests of information or corrections in such cases. The CNMC is sensitive about certain transactions, for example, transactions involving failing companies, companies in critical situations involving dismissal programmes, etc.

The undertakings under an obligation to notify are: i the parties involved in a merger, in the creation of a joint venture or in the acquisition of joint control over all or part of one or more undertakings; or ii the party that acquires sole control over all or part of one or more undertakings. In Spain, a fee has to be paid at the time of notification.

In a short-form scenario, in the event that the CNMC decides that a concentration has to be notified using the standard form see the answer to question 3. As previously described, an economic concentration cannot be completed until express or tacit authorisation has been granted by the CNMC, or potentially by the Spanish Government in certain Phase II cases.

In the case of public bids, as soon as the Board of Directors of the acquiring company has decided to launch a public bid and this has been publicly announced, the notification can be filed see the answer to question 3. Yes, the announcement of the notification containing, inter alia , the name of the parties, the date of notification, the affected sector, a brief description of the transaction, etc.

However, the parties to the transaction may request the CNMC to hide some information considered to be confidential before the publication of the clearance decision.

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The CNMC will decide on the request for confidentiality of some information before publishing its decision see the answer to question 4. It will normally take a couple of months after the clearance for the CNMC to publish the decision. Contrary to the EUMR, the concept of dominance is not even mentioned in the Spanish substantive test, which emphasises the economic aspects of concentrations.

The factors that the CNMC will rely upon in assessing a concentration are, amongst others: the structure of the relevant market; the position of the parties in those markets and their financial and economic strength; the existence of actual or potential competitors inside or outside the national territory; the possible alternatives for suppliers and consumers and their access to supply sources; the existence of barriers to entry; the evolution of offer and demand; and bargaining power which may outweigh the position of the parties to the transaction in the market. These efficiencies have to benefit clients and end consumers through a wider variety of choices and lower prices.

In comparison with the old act, the new law sets out a more exhaustive list of relevant factors.

File history

Non-competition issues are only taken into consideration in Phase II cases in which the Council of Ministers decides to assess the concentration in light of criteria of general interest. The intervention of complainants is not formally recognised during Phase I. Therefore, they do not have the right to have access to the file or to have any objections considered. However, competitors have been able to submit observations during Phase I on the basis of general administrative law.

During Phase II, third-party interventions are formally recognised in different ways:. In addition, and as explained in the answer to question 5. The CNMC may request any information it deems necessary from the undertakings involved in the transaction, any other third party or even any public authority. As explained in the answer to question 3. If they fail to comply with this request, the CNMC will be entitled to terminate the procedure. In addition, if the notifying parties do not submit the requested information within 10 days, they will not benefit from tacit authorisation see the answer to question 3.

The notification is public and the CNMC will publish a reference to the status of the notification on its webpage, as well as the name of the companies, the affected economic sector, and a brief description of the operation. Confidential information will not be disclosed to third parties.

For this purpose, any document which is submitted to the CNMC will be accompanied by a non-confidential version. The parties will have to justify why the extracted information is confidential. If a non-confidential version is sent, the CNMC may consider that all the information may be disclosed to third parties. Nevertheless, during pre-notification contacts, the parties may submit a confidential draft form in order to clarify the formal or substantive aspects of the concentration see the answer to question 3. At the end of Phase I, the CNMC will send the decision and report to the notifying party so that the latter can request the confidentiality of certain information within five working days.

Comisión Nacional de los Mercados y la Competencia

If no request is sent within the prescribed time limit, the CNMC may publish the decision and report on its integrity. In the case of a negative or conditional Phase II decision, the Government may intervene. For that purpose, the Minister for Economy will have to decide whether to refer the case to the Council of Ministers within 15 days of hearing of the decision. The Council of Ministers will then decide within one month whether to confirm the Council decision, modify it or clear the concentration, with or without conditions, on public interest grounds other than competition.

A Phase II clearance decision without conditions is immediately enforceable. On the contrary, a negative or conditional Phase II decision will only be enforceable once the deadlines for the Minister for Economy and Governmental intervention have lapsed. The remedies requested during Phase I may only be accepted when the competition concerns that have arisen are clearly identifiable and easily remediable. In that case the party committed to not bid or supply in new signings for a stipulated period and to provide information to competitors and clients which their supply was going to be shift to natural gas.

Particularly, the parties committed to grant access to the system and provide optional systems to those who request it. Cepsa committed to leave the petrol station out of the operation. In that case, Hypercom decided to sell its Spanish subsidiary to a third company, Klein Partners, in order to avoid any merger competition issues in Spain. However, the Spanish Authority caught the transaction as it understood that it fell under its jurisdiction, and only cleared the transaction in Phase I after remedies were offered by Verifone.

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Substantive Assessment of the Merger and Outcome of the Process. As this book evidences, today almost all competition authorities have a notification process in place — with most requiring pre-merger notification for transactions that meet certain prescribed minimum thresholds. Spackman, S. The Real Estate Law Review. Finally, it is important to note that the Spanish Parliament is currently discussing the possibility of splitting the CNMC into two independent regulatory bodies. The broad message of the book is that this risk is growing steadily. It will be interesting to see how courts and companies navigate the differing and evolving legal regimes in the year ahead.

Please describe any relevant procedural steps and deadlines.