Control of concentration in Spain -Journal du Management Juridique et Reglementaire nº63-

JAN 31 / 2019

Law of Competition and Distribution.

Mergers control in Spain

The merger control regime of Spain, established in the Competition Law 15/2007 and its regulations approved by Royal Decree 261/2008 [1], is based on a prior administrative authorization procedure for transactions that reach a certain threshold . [two].

An "economic concentration" is understood as the lasting change in control of all or part of one or more companies that results from (i) the acquisition of that control, (ii) the merger of two or more previously independent companies or ( (iii) the creation of a joint venture and the acquisition of joint control over one or more companies when they permanently perform the functions of an autonomous economic entity.

"Control" means the possibility of exercising by any means [3] a decisive influence on a company and, in particular, through the rights of ownership or enjoyment of all or part of its assets or its governing bodies.

However, this category does not include the redistribution or reclassification of securities or assets within the same group and, under certain conditions, the acquisition of temporary holdings in a company by credit, financial or insurance institutions. and financial investment companies, as well as certain acquisitions made in the context of collective insolvency proceedings.

To be subject to the control of the Administration, economic concentrations must reach one of the following thresholds:

• When the concentration results in the acquisition or increase of a share equal to or greater than 30% of the relevant market of a product or service at the national level or a geographic market defined therein [4].
• When the total turnover reached by all the participants in Spain during the last fiscal year exceeds 240 million euros and as long as at least two of the participants individually perform in that country a figure of Business above 60 million euros.

Before notifying your project, interested parties can consult the National Commission of Markets and Competition (CNMC) to find out if the proposed transaction is a controlled concentration and / or if it reaches the notification thresholds.

When the transaction reaches one of these thresholds, it must be notified by the buyer [5] to the CNMC, before it is completed. Unless the suspension is lifted or for the acquisition offers under certain conditions, in the absence of authorization, it can not be executed.

Once notified and after the evaluation, the CNMC has a month [6] to authorize the transaction with, if necessary, the commitments proposed by the interested parties or, if it considers that the concentration represents an obstacle to effective competition in the market. market, initiate an exhaustive procedure with public communication and decide within two months6, if it authorizes it with or without conditions or if it prohibits it.

It is considered that the authorization also covers the accessory restrictions directly related and necessary to carry out the operation.

Finally, the Council of Ministers may, for reasons of general interest and under certain conditions, confirm, modify or revoke the decision of the CNMC.

[1] This scheme does not apply to the economic concentrations at Community level referred to in Regulation (EC) No 139/2004, except in the case of a decision for referral to the Spanish authorities.

[2] For the evaluation and analysis of the operation, the administration also makes use of the communications and guidelines of the European Commission in this area.

[3] The cases mentioned in article 42 of the Commercial Code are also considered as such.

[4] However, transactions that reach this threshold are exempt from control, but the turnover of the company or assets acquired in Spain during the last year does not exceed 10 million euros and provided that the participants do not do so. they do not have an individual or joint market share of 50% or more in any of the relevant markets at the national level or in a geographic market defined in them.

[5] In the case of a merger, joint venture or joint acquisition, it is up to the parties to notify jointly.

[6] In the absence of an express decision within this time limit and provided there has been no extension or suspension, the transaction is considered authorized by a positive administrative silence.