The CNMC approves new Guidelines for determining competition sanctions
Although the new Guidelines retain the existing legal basis and guiding principles, they introduce significant adjustments to the calculation method and set out the applicable criteria in greater detail, with the aim of increasing the predictability of the penalty regime. Furthermore, they incorporate for the first time a specific methodological framework for fines imposed on directors and officers, which constitutes one of the main new features of the text.
From a methodological perspective, the new Guidelines confirm that fines for legal persons are determined by setting a “penalty rate” within the limits of Article 63.1 of the LDC (up to 10% for restrictive agreements and abuses of a dominant position, and up to 5% for unfair practices that distort competition), which is applied to the infringer’s total worldwide turnover for the relevant financial year. This explicit clarification of the global nature of turnover brings the text into line with case law, in contrast to the 2018 wording, which referred generically to total turnover.
Even more significant is the change in the method’s internal structure. Whilst the 2018 version structured the calculation in two phases with indicative weights — a general rate of around 60% and an individual rate of around 40% — the new approach abandons this division and provides for the allocation of a single penalty rate per company, resulting from the individualised weighting of the criteria set out in Article 64 of the Competition Act. This redesign aims to avoid unnecessary rigidity, allowing companies in comparable situations to be treated in the same way and the final percentage to be adjusted more precisely to the specific circumstances of each case, without having to force it into predetermined percentages, which gives the system greater technical flexibility.
The new Guidelines also reorganise and clarify the adjustment of penalty levels in accordance with the criteria set out in Article 64 of the LDC (the size and characteristics of the affected market, market share, the scope, duration and effects of the infringement, the unlawful profit obtained, and aggravating and mitigating circumstances). In particular, the size of the market — understood as turnover in the affected market — is expressly distinguished from the characteristics of the market, and circumstances are identified that may justify a higher penalty, such as infringements in the context of public tenders, markets with a large number of affected parties, the existence of spill-over effects, the economic or strategic importance of the sector, or the impact on vulnerable consumers. Likewise, a distinction is made between the treatment of the infringers’ combined market share in cases of collusion or restrictive agreements, and the analysis of individual market share in cases of abuse of a dominant position or infringements of Article 3 of the LDC. The duration of the infringement takes on a more cross-cutting role, as a factor increasing the penalty rate and not merely as an element of individualisation, and greater attention is paid to the geographical scope of the conduct in line with recital 47 of the ECN+ Directive (which established that penalties must reflect, amongst other things, the territorial extent and cross-border effects of infringements).
The so-called ‘final proportionality test’ remains in place, but with a revised approach. Under the 2018 Guidelines, a proportionality threshold was calculated (by multiplying the estimated unlawful gain by a factor of between 1 and 4) and, if the fine exceeded this threshold, it was adjusted downwards to that level. The new text replaces this scheme with the estimation of a single ‘reference value’, which allows for a joint assessment to ensure that the resulting penalty is neither excessive nor insufficient to fulfil its preventive function. To this end, the CNMC takes the turnover in the affected market as its starting point, applies a percentage based on the company’s gross margin or, where this is not representative, that of the sector, and multiplies the result by a factor ranging from 1 to 6 depending on variables such as the gravity and complexity of the conduct, the size of the offender and its ability to pay. Extending the factor up to 6 clearly reinforces the deterrent aspect of the system, whilst the possibility of adjusting the penalty upwards or downwards ensures that the final outcome is not disproportionate.
The new Guidelines include scenarios that were not previously explicitly covered, such as the possibility of imposing fixed-sum or even symbolic penalties where the nature of the infringement or the lack of information so warrants. As well as the use of supplementary criteria to better reflect each offender’s involvement in the infringement, for example, by taking into account the number of tenders in which the company has participated or the number of users affected by each company’s conduct. It is reiterated, however, that these Guidelines are of a general nature, alternative methods may be used where duly justified, and that all of the above is without prejudice to the application of the leniency programme.
The most striking new feature of the revised text is the inclusion of a specific section on fines for directors and officers, pursuant to Article 63.2 of the LDC, which allows fines of up to €60,000 to be imposed on legal representatives or members of management bodies who have been involved in the infringement. The proposed method adapts the criteria of Article 64 of the LDC to the individual conduct of the natural person, and introduces additional factors designed to capture the executive’s actual contribution, such as the seriousness and nature of the infringement, the duration of their involvement, their hierarchical position and effective decision-making capacity (the higher these, the greater the penalty) or the intensity of their actions, which would be reflected, for example, in the number of tenders affected by the infringement in which they have participated. This framework provides greater predictability regarding the individual liability of the natural person and aligns administrative practice with recent developments in case law.
Overall, the new Guidelines represent a consolidation and streamlining of the penalty system in place since 2015. The method is simplified, the relevant criteria are clarified, and the final adjustment of the fine is reinforced to ensure that the outcome is consistent and effective. At the same time, the introduction of a specific regime for directors and officers marks a significant turning point, as it also focuses on the consequences in terms of fines for individual liability. In practice, the new framework provides greater predictability regarding how penalties are calculated, but also makes it clear that the CNMC is strengthening the deterrent aspect, paying particular attention to factors such as the geographical scope of the conduct, the impact on particularly vulnerable groups, and the actual role played by each individual in the infringement.
