In 2015, the Spanish Competition Authority ("CNMC") sanctioned a cartel of Land Rover dealers, and found that a consultancy firm, ANT Servicalidad, was also liable for the conduct as it acted as a facilitator of the cartel. In a recent judgment, the Spanish High Court rejected the appeal brought by this consultancy firm and confirmed the fine imposed by the CNMC.
| what you need to know - key takeaways |
- The Spanish High Court established that the principle of non-bis in idem (legal doctrine that no legal action can be instituted twice for the same cause of action) does not apply if an undertaking performed the same anticompetitive behaviour in respect of different cartels.
- The Court reinforced the powers of the Spanish Competition Authority in its dawn raids orders and reinforced the doctrine on 'incidental findings' which are deemed lawful.
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The High Court has recently rejected the appeal brought by ANT, a consultancy firm fined for acting as a facilitator of the cartel, against the Land Rover dealer cartel sanctioned by the CNMC in 2015.
The CNMC found that the cartel consisted in an anticompetitive agreement of maximum discounts to be applied to prices entered by the Land Rover dealers of Madrid and ANT consulting provided services in order to monitor the compliance of the anticompetitive agreements in the market. Alongside with this cartel, during the same period the CNMC also sanctioned similar dealers cartels of Volkswagen, Audi and Seat brands, amongst others, in which ANT Servicalidad also offered similar services.
ANT Servicalidad challenged the sanction in several grounds, however none of the challenges set forward have succeeded:
- First, it was argued that the decision was based on unlawful dawn raids as the investigation order did not contain the minimum information justifying the inspections. Further, the investigation order did not include any references to possible practices concerning Land Rover car dealers as it only referred to practices relating other brands such as Audi or Seat. The Court ruled that the inspection orders did follow the criteria settled by the Supreme Court and that there were sufficient indicia in order to justify the inspections. Further, the Court established that the fact that the order did not referred to the conducts by Land Rover dealers, according the doctrine on 'incidental finding' the findings in this regard were lawful.
- Second, the CNMC decision was challenged on the ground that is was in breach of the 'non bis in idem' principle, as ANT Servicalidad had been fined for the same conduct in cartel decisions relating to other brands, issued on the same day. Nevertheless, the Court considered that such principle was not breached as the conduct related to different cartels, thus different situations.
- Finally, the sanction was challenged as ANT Servicalidad considered that it was not proportionate. However, the Court considered that the fine, based on the 2.5% of ANT's annual turnover, was proportionate considering its key role as facilitator of the cartel.
This case further develops the jurisprudence on facilitators in Spanish competition law and establishes key insights on how the non-bis in idem principle applies in such cases.
With thanks to Ana Soria of Ashurst for her contribution.
