The modernization of the system of Implementation of articles 81 and 82 of the treaty of The European Community from the Spanish perspective

13 INTERNATIONAL LAW THE MODERNIZATION OF THE SYSTEM OF IMPLEMENTATION OF ARTICLES 81 AND 82 OF THE TREATY OF THE EUROPEAN COMMUNITY FROM THE SPANISH PERSPECTIVE* ALFONSO-LUIS CALVO CARAVACA MARÍA PILAR CANEDO ARRILLAGA NATIVIDAD GOÑI URRIZA** * This paper was presented in the Competition Law Scholars Workshop “Decentralised Enforcement: From the Idea to the Reality” held in Glasgow Graduate School of Law, University of Strathclyde the 22nd april 2004. It is forseen to publish the contributions of this workshop. ** Dr. ALFONSO LUIS-CALVO CARAVACA is Professor at Carlos III University in Madrid, Dra. MARÍA PILAR CANEDO ARRILLAGA is Lecturer at Universidad de Deusto in Bilbao and Dra. NATIVIDAD GOÑI URRIZA is Lecturer at Universidad Pública de Navarra in Pamplona. Fecha de recepción: 25 de mayo de 2004 RESUMEN Este artículo analiza como las autoridades españolas de la competencia se van a ver implicadas en la aplicación del derecho comunitario de la competencia debido al impacto de la modernización de la legislación comunitaria para la aplicación del régimen del Tratado de Roma para las ententes y los abusos de posición dominante. existen una serie de problemas a resolver 14 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. SUMMARY I. Introduction II. Organization of the spanish NCA A Bodies B The powers of inspection III. Description of the procedure IV. Question of the modernization from the spanish perspective A. About the national authorities B About the allocation of the cases and the suspension of proceedings como la posibilidad de forum shopping y el respeto al principio ne bis idem. Palabras clave: Derecho comunitario de la competencia. Forum shopping, derecho internacional privado. ABSTRACT In this paper we are going to deal with the impact of the community antitrust modernisation in Spain. the present paper starts describing the spanish competition system and goes on to analyse different aspects of the impact of community modernisation. from an institutional point of view spanish legal system is well positioned to implement the new european model of control of the practices against the competition but an important group of problems are now without solution. Key words: Community antitrust law. Competition. Forum shopping, international private law. 15 INTERNATIONAL LAW C. The individual exemption D. The prejudicial consequences of the Criminal Proceedings. The prevail of judicial procedure over the administrative one in the Spanish legal order E. The application of the leniency programs in the Spanish legal system V. Conclusion I. INTRODUCTION In this paper we are going to deal with the impact of the Community Antitrust Modernisation in Spain. The present paper starts describing the Spanish competition system and goes on to analyse different aspects of the impact of Community modernisation. The Spanish Law of competition is inspired by the Community competition Law from its beginnings, even before Spain became a party of the European Communities1. Now, the Competition Act of July 17th of 1989, of Defence of Competition (from now on Spanish Competition Act) copies the Community Competition Law, and mainly, the articles 81 and 82 of the Treaty2. In this way, the Spanish Law prohibits agreements, decisions by associations of undertakings or concerted practices which restrict competition in all or any part of the domestic market in similar terms to those of the article 81 of the Treaty (Article1 of the Spanish Competition Act). It also lays down the possibility for the parties who are involved 1 Already the Law 110/63, of 20th July, of Protection against Restrictive Practices of Competition it is based mainly on the articles contained in the Treaty. 2Vid. S. HIERRO ANIBARRO, “La evolución de los órganos españoles de defensa de la competencia desde la perspectiva del derecho comunitario”, Noticias de la Unión Europea, 2003, pp. 65-76. 16 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. in an agreement to obtain an individual exemption from the previous prohibition when the agreement fulfils many conditions which are exactly the same foreseen in Article 81 section 3 of the Treaty (Article 3 of the Spanish Competition Act). Moreover, any abuse by one or more undertakings of a dominant position shall be prohibited by Spanish Competition rules (Article 6 of the Spanish Competition Act) in similar terms to those of Article 82 of the Treaty. In other subjects, Spanish law doesn’t copy the European law, but ours integrates it. This is the case of the application of the Spanish equivalent to article 81 section 3 of the Treaty to agreements of the category3. Indeed, the Competition Act refers this matter to the European regulations on agreements of the category exemptions. According to the provisions of Spanish Competition Act from, July 17th from 1989 (Article 5.1 a)), vertical agreements related only to the Spanish market, are authorised provided that they comply with the provisions established in Commission Block Exemptions Regulation (EC) No 2790/1999, of 22nd of December 1999 on application of Article 81 (3) of the Treaty to categories of vertical agreements and concerted practices, or in those Community Regulations that substitute it, and in Commission Block Exemptions Regulation (EC) No 1400/2002, of 31st of July 2002 on application of Article 81 (3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector, or in those Community Regulations that substitute it. Similar solutions are provided for Technology Transfer agreements, Horizontal agreements and agreements in the Insurance sector. Spanish Competition Authorities even interpret the Competition Act in exactly the same way that the Commission applies Community Law. In consequence, most of Spanish notions of Competition Law are the 3 Real Decreto 378/2003, of March 28th, developing the Law 16/1989, of july 17th, of Defence of the Competition, as regards excuses for categories, singular authorization and registration of defence of the competition, (BOE n. 90, of 15th april). 17 INTERNATIONAL LAW same as European concepts. Spanish Authorities have copied the notion of abuse of dominant position, and their application to related markets4. II. ORGANIZATION OF THE SPANISH NCA A. BODIES Anyway, the application of the Spanish Competition Act, (which aims to ensure for the constitutional economic order in the market economy with a view to defending the public interests) is entrusted to the following administrative bodies: The Spanish Competition Court (Tribunal de Defensa de la Competencia), with the functions of legal ruling and, in some cases, proposals, and the Competition Service (Servicio de Defensa de la Competencia), in charge of instructing the proceedings. On the one hand, the Competition Service is attached to the Ministry of Economy and its functions are, among others, to instruct the proceedings for conduct included in the Competition Act, to co-operate on the issue of competition with foreign bodies and international institutions and to carry out the tasks of collaboration between the Spanish Administration and the European Commission to apply Articles 81 and 82 of the Treaty in Spain (Article 31, letters a, f and g of the Spanish Competition Act)5. The Spanish Competition Court, on the other hand, is the main Body of the system of Spanish defence of competition. Although it is attached 4Vid. Res. TDC 11 november 1997, Relojes Rolex. 5 It has also other functions as the to vouch for the execution and compliance with the resolutions adopted in applying the Spanish Competition Act, to keep the Competition Defence Register, to study and carry out research on the economic sectors, analysing the situation and degree of competition present in each one of them, as well as the possible existence of practices that restrict competition. As a result of the studies and research that is carried out, it may propose the adoption of measures to remove the obstacles on which the restriction is based. Finally, it may inform, provide advisory services and proposals on the matter of restrictive agreements and practices, the concentration and association of undertakings, the degree of competition in the internal and external market in comparison with the domestic market and on the other issues pertaining to competition defence (Article 31 letters b, c, d, of Spanish Competition Act). 18 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. to the Ministry of Economy, it is configured as an autonomous Body, with a differentiated public legal personality and autonomous management so it enjoys full independence in the exercise of its functions6. Spanish Competition Court functions are to settle and issue reports on competition issues, to apply in Spain Articles 81 and 82 of the Treaty and its developing Laws and to require the Competition Service to instruct proceedings (Article 25, letters a, c and f of the Spanish Competition Act)7. Passing now to other matters, lets go now through the Powers of the Spanish Bodies: Firstly, the procedure shall be initiated by the Service ex officio or at the request of the interested party. The same as the European Commission, the Competition Service may agree not to initiate proceedings derived from presumably committing the acts prohibited by the Law, when it considers that the behaviour do not have a significant effect on the competition conditions due to their relative unimportance8. Equally, the Spanish Competition Court, once the proceedings have been submitted, will decide on their admission by considering if the relevant background has been supplied by the Competition Service. This is call in Spanish Law principio de oportunidad de investigación (Articles 36, section 1, letter a and Article 39 of the Spanish Competition Act). 6 Article 63 of the Law 24/2001, of december 27th, of Tax, Administrative and Labour measures has modified the legal nature of the Competition Court and now it becomes an autonomous organism. The Competition Court has now its own statute, vid. RD 864/2003, of july 4, for which the Statute of the Competition Court is approved, (BOE n. 161, 10th july). 7 Other important functions of the Competition Court are the following: to authorize the agreements prohibited by Article 1 of the Spanish Competition Act in the cases and according to the requirements foreseen in Article 3 of the Spanish Competition Act, to inform on the economic concentration transactions with community dimensions, to rule the projects to open large commercial outlets, to carry out arbitration functions and to draw up reports on compensation for damages (Article 25 letters b, d, and, g, h of the Spanish Competition Act). 8 Case T-24/90, 18 september 1992, Automec v. Commission, ECR.1992/II, p. 2223. 19 INTERNATIONAL LAW B. THE POWERS OF INSPECTION a) Secondly, the investigation powers of the Spanish administrative bodies are equally similar to those of the European Commission: This way, in the course of their inspections, the officials may examine, obtain copies or take extracts from books and documents, including accountancy documents, on any material support, and if necessary, retain them for a maximum of ten days. On the contrary, the European Commission may not retain documents but may seal them, for the period and to the extend necessary for the inspection (Article 20.2 of the Regulation 1/2003). In the course of the inspections, under the Spanish Law the officials may also ask for explanations in situ (Article 33.2 of the Spanish Competition Act9) but the Competition Act does not specify who could be asked and the subject of the questions. In contrast to the Spanish Law, the Regulation 1/2003, states that any representative or member of staff of the undertaking or association of undertakings may be asked during the inspection for explanations on facts or documents linked with to the subject-matter and purpose of the inspections (Article 20.2 Regulation 1/2003). Besides, the Competition Act does not state if the answers can be recorded either. All these powers of inspection under the Competition Act have been modified by the Law December the 30th 2003, with the purpose of adapting the Spanish legislation to the Regulation 1/2003. In the Regulation 1/2003 and under Spanish Law access to premises may be made with the consent of the occupants or by means of a court order (Article 34 of the Spanish Competition Act). Moreover, a proposal of Real Decreto sets up devices for cooperation between the Competition Service and the competition authorities of other Member States for the application of the articles 81 and 82 of the Treaty. It will enter into force the first of May of this year. It says that Competition Service may in its own territory carry out inspection under Competition Act on behalf and for the account of the 9 This Article has been modified by the Law 62/2003, of 30th December in order to adapt Spanish Law to the new model. 20 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. competition authority of another Member State in order to establish whether there has been an infringement or not of articles 81 and 82 of the Treaty10. After talking about the powers of inspection it is time to deal with the fines which can be imposed by the Court. b) Fines. The Spanish Competition Court, like the European Commission may impose fines of up to 6.010,12 euros to those undertakings who intentionally or through negligence, fail to provide data or information or do so in an incomplete or inaccurate way. The Director of the Competition Service, on the other hand, may sanction them with coercive fines of between 60,10 and 3.005,06 euros for every day’s delay in observing the duty to provide the data and information in the term referred to in the Spanish Competition Act (Articles 29.2 and 32.2 Spanish Competition Act). The Commission may impose higher fines, up to 1% of the total turnover in the preceding business year when undertakings supply incorrect or misleading information or up to 5% of the average daily turnover in the preceding business year per day in order to compel them to supply complete and correct information which has been required (Article 23, section 1 of Regulation 1/2003)11. The Spanish Competition Court may, like the European Commission, impose on the undertakings, that have either deliberately or through negligence breached the prohibition of agreements or abuse of a dominant position which restrict competition, fines of up to 901.518,16 euros, amount which may be increased up to 10 percent of the turnover corresponding to the financial year immediately prior to the Court decision. However, the Spanish Competition Act may also sanction the offenders, in the case of a legal entity, its legal representatives or the 10 Article 6 of the proposal of a Real Decreto about the application of European Competition Law in Spain, www.mineco.es/dgdc/sdc (last acces may 2004). 11 This Article has been also modified by the Law 62/2003, of 30th december in order to adapt Spanish Law to the new model. 21 INTERNATIONAL LAW members of the management bodies that have intervened in the agreement or decision with a fine up to 30.050,61 euros. But the competence of the Spanish Competition Service and the Competition Court for applying the Spanish Competition Act has been restricted by the Constitutional Court. In 2002 was adopted the Act of February the 21st, which constitutes the framework of a decentralised system of enforcement of the Competition Act. The new regulation implies, due to a Constitutional Court decision, the major administrative reform in the current institutional design of the Spanish competition system. The Constitutional Court judgement issued on 11th of November 1999, acknowledges that the Autonomous Communities have executive powers in the enforcement of the competition legislation12. Nonetheless, the exercise of these powers must be reconciled with the need to protect the unity of the national economy and the demand for a single market that can allow the State to develop its constitutional powers in laying down and co-ordinating the general plans for economic activity in the interests of respecting the equality of the basic conditions for the exercise of economic activity. The Act 1/2002 is the result of that mandate and it came into force on May 23, 200213. The main elements and effects of this Act are the following: 12 STC núm 208/1999 (Sala Segunda), 11th november 1999, vid. B. BELANDO GARÍN, “Defensa de la competencia y comercio interior (Comentario a la Sentencia del TC 208/1999, de 11 noviembre 1999”, Civitas Revista Española de Derecho Administrativo, n° 106, 2000, p. 271; P. BIGLINO CAMPOS, “Principio de competencia, inconstitucionalidad y nulidad a la luz de la STC 208/1999 (RTC 1999, 208), sobre la Ley 16/1989 de Defensa de la competencia” Revista Española de Derecho Constitucional, n° 59/2000 (mayo-agosto 2000), pp. 303-330; S. MARTÍNEZ LAGE, “La sentencia del Tribunal Constitucional de 11 de noviembre de 1999”, Gaceta Jurídica de la CE, nº 205/2000, pp. 3-9. 13 It is a very controversial judgement because four judges of the Constitutional Court cast a vote running counter the majority opinion setting out their reasons for withholding assent. Vid. STC núm. 208/1999 (Sala Segunda), 11th november 1999. 28 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. paragraph 2 of Regulation 1/2003 settle down that “Agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which satisfy the conditions of Article 81(3) of the Treaty shall not be prohibited, no prior decision to that effect being required.” On the other hand article 10 settle down that “Where the Community public interest relating to the application of Articles 81 and 82 of the Treaty so requires, the Commission, acting on its own initiative, may by decision find that Article 81 of the Treaty is not applicable to an agreement, a decision by an association of undertakings or a concerted practice, either because the conditions of Article 81(1) of the Treaty are not fulfilled, or because the conditions of Article 81(3) of the Treaty are satisfied. The Commission may likewise make such a finding with reference to Article 82 of the Treaty”23. By these two articles we can conclude that the system of notifications and individual exemptions has disappeared of the community procedure with the advantages and inconveniences that this change implies24. We can talk about less formalism and less handling charge for the parties in the administrative procedure before the Commission and on the other hand we must take into account a decrease in the legal certainty that the system implies that can impose a cost in itself for the companies. Independently of the valuation or appraisal that this system deserves in our opinion, we have to show the situation and specially the problems that this modification implies in the Spanish legal order. 23 See also the Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty Official Journal C 101, 27.04.2004, pp. 65-77, the Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters) Official Journal C 101, 27.04.2004, pp. 78-80. 24 Among others, vid. C. FOURGOUX, “Un nouvel Antitrust européen. Espoirs et craintes”, Revue de Jurisprudence Commerciale, 2001, pp. 51-65; W. JAEGER, “Die möglichen auswirkungen einer Reform des EG-Wettbewerbsrechts für die nationales Gerichte”, Wirtschaft und Wetwebwerb 2000, nº 11, pp. 1063-1075; K. HOLMES, “The EC White Paper on Modernisation”, World Competition, nº 23, 4, 2000, pp. 51-79; M. MONTI, “The international Dimension of Competition Policy”, Fordham Annual Conference on International Antitrust Law and Policy, 31 de octubre de 2002, p. 5; M. MONTI, “European Competition for the 21st Century”, Fordham International Law Journal, junio 2001. 29 INTERNATIONAL LAW As we have just analysed in the first part of this work, our legal system is directly and expressly based on the Community regime both in relation to the legal aspect or statutory scheme and also in relation to the application and interpretation of all concepts which are used in our legal practice and theory. That is the reason why, Article 1 of our Competition Act and Article 81 of the Treaty have equivalent content and why Article 6 of our Competition Act is coincident with Art. 82 of the Treaty. Directly based in the Community legal order when it was created, our internal law permits the possibility to grant exemptions from the prohibition of the agreements when the practices complete a group of conditions. These conditions are exactly the same as those in paragraph three of Article 81 of the Treaty. Our Act talks both about block exemptions (Article 5) an also singular exemptions called in our system “Individual Authorisations from the Court” (Art. 4). In fact the possibility to grant individual exemptions has been used by the Spanish Competition Court, -Tribunal de Defensa de la competenciain a very high number of cases25. (and the Court has published several Block exemption regulations). The modification that has been carried out in the Spanish Act in order to implement the Community rulings before the date of entry into force of the Regulation 1 last first may, has not implied any change regarding this question. That is why, when Spanish rules must be applied, the companies will be able to go before the Spanish Competition Court and request from him the grant of an individual exemption in application of Spanish competition Act. It doesn’t seem reasonable to conclude that this fact constitutes in itself an affectation to the uniform application of the European competition 25 In fact, in the last three years we have more than 80 decisions of individual exemption. It is interesting to analyse the web page of the Servicio de Defensa de la Competencia http://www.mineco.es/dgdc/sdc/memorias.htm (last access 20-05-2004) where the Annual Reports of the administrative body can be found since 1997 until 2002. In the web page of the Tribunal de Defensa de la Competencia (the other administrative body) we can find the annual reports of this institution since 1993 to 2002 http:// www.tdcompetencia.org/frames.asp?menu=2 (last access 20-05-2004). 30 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. rules because we have to take into account and even underline that we are only talking about the application of Spanish internal rules. Nevertheless, and given the identity —that goes beyond the mere likeness— between the Spanish legal system and the European one it would be possible to think that some problems could arise. We could imagine the case of a company that goes before the Spanish authority to request of it an individual exemption and we could imagine that the exemption is granted in application of the Spanish rules. This fact could be considered as a certain guarantee for the aforementioned company that the same authority will not consider as a reasonable possibility that of applying against the agreement the European community legislation that, as we already know, has the same content. It is clear that the Spanish authority will not be able to grant a decision of individual exemption in application of the European community legislation. As we also know the new Regulation restricts the possibility to grant that kind of decisions to the Commission. Even that institution grants them ex officio, so on it’s own initiative, and only in that cases that she considers important enough for the Community public interest relating to the application of the articles 81 and 82 of the Treaty taking into account a group of different things. However the granting of the exemption in the internal market could be considered as a certain guarantee for the company. This way, that company could obtain a non direct guarantee of the principle of legal certainty that, when disappearing the system of previous notification, can be considered in issue. It is clear that the content of the Spanish legislation finds its reason of being in the old community regulation and not in an internal legislator’s express will of being different of the community system. However, if Spanish legislator would have wanted the system to be changed he could have chosen different ways. For example, the Act 62/2003 that has been used to change some other questions and to adapt our Act to the new model26, or the Real Decreto of 28 March 26 Ley 62/2003, of 30 December of tax, administrative and labour measures (de Medidas Fiscales, Administrativas y del Orden Social) (BOE. nº 313, de 31 de diciembre de 2003, pp. 46934, 6992). 31 INTERNATIONAL LAW 200327 in which the Regulation is developed could have been considered as appropriate tools to make that change28. Talking about something quite different, we know that we are trying to establish a system which ensures that the competition is not distorted in the common market and with this aim articles 81 and 82 of the Treaty must be applied effectively and uniformly in the Community29. We should have to consider if this situation could cause a problem of non equal treatment for the companies. In certain way, we must think about that situation in the cases in which these three different conditions are fulfilled. The first condition is that we have a national legal system where the rules have the same content as in the European model. The second one is that the authority in charge of applying national law is the same that the one that has the task of applying the Articles 81 and 82 of the Treaty. The last one is that the internal procedure –inspired by the old community rules– has not been adapted to the new situation of the R 1/03. Then the companies 27 Real Decreto de 28 de marzo de 2003, that has developed the Act 16/89 (BOE nº 90 15 de abril de 2003). 28 All the spanish legislation including a proposal of change can be found in Servicio de defensa de la competencia http://www.mineco.es/dgdc/sdc/ (last access 20-052004) and a version in english of the main legislation in the web page of the Tribunal cit. 29 Among others, X. ARZOZ SANTISTEBAN, “Las reformas del sistema comunitario de intervención administrativa en materia de competencia”, Revista Vasca de Administración Pública, 2001, pp. 81 to 117; E. BANNERMAN, The future of EU Competition Policy, Centre for European Reform, enero 2002, pp. 31-33; J.M BENEYTO, “Hacia un nuevo derecho de la competencia. El Libro Blanco de la Comisión sobre modernización y descentralización en la aplicación de los artículos 85 y 86”, Gaceta Jurídica de la CE, n. 202, 1999, pp. 9 to 19; A.L., CALVO CARAVACA; M.P., CANEDO ARRILLAGA, “Libre competencia y descentralización”, Revista Española de Derecho Comunitario, Ed. Civitas, nº 1, 2003, pp. 5-45; A. DERINGER, “Stellungnahme zum Weissbuch der Europäischen Kommission über die Modernisierung der Vorschriften zur Anwendung der art. 85 und 86 EG-Vertrag”, Europäische Zeitschrift für Wirtschaftsrecht, 2000, pp. 5 to 11; D. EDWARD, “Competition and the law. Where are we going?”, Wirtschaft un Wettbewerb, 2001, pp. 1185-1190; C.D. EHLERMAN, “Reform of European Competition Law. Coherent application of EC Competition Law in a system of paralell competences” Freiburg 2000; C.D. EHLERMAN, “The modernization of EC antitrust policy: a legal and cultural revolution”, Common Market Law Review, 2000, pp. 537-590; W. FIKENTSCHER, “Das Unrecht einer 32 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. could have a legal way to foresee with a reasonable level of legal certainty the assessment that deserves a certain agreement or practice. On the contrary in the States where some of this mentioned circumstances is not fulfilled, the companies will not have the possibility to foresee the opinion of the competent authority. They would be forced to carry out particular studies by private legal or economic advisers Wettbewerbsbeschränkung: Kritik an Weissbuch und VO Entwurf zu art. 81, 82 EG-Vertrag”, Wirtschaft und Wettbewerbs, 2001, pp. 446-458; A. GEIGER, “Das Weissbuch der EG-Kommission zu Art. 81, 82 EG Eine Reform besser alr ihr Ruf”, Europäische Zeitschrift für Wirtschaftsrecht,2000, pp. 165 to 169; L. IDOT, “Le nouveau système communautaire de mise en oeuvre des articles 81 et 82 CE (Réglement 1/2003 et projects de textes d’application) en Cahiers de Droit Européen, 2003, nº 3-4, pp. 302-308; J. LEVER, “The german Monopolies Commission’s Report on the Problems Consequent upon the Reform of the European Cartel Procedures”, European Competition Law Review, julio de 2002, pp. 321 to 325; E.J. MESTMÄCKER, “Versuch einer kartellpolitischen Wende in der EU”, Europäische Zeitschrift für Wirtschaftsrecht, 1999, pp. 523 to 529; W. MÖSCHEL, “Change of Policy in the European Competition Law?”, Common Market Law Review, 2000, pp. 495 to 499; J. NAZERALI, D. Cowan, “Modernising the Enforcement of E.U. Competition Rules, Can the Commission claim to be preaching to the Converted?”, European Competition Law Review, 1999, pp. 442 to 445; P. NICOLAIDES, “Reform of EC Competition Policy: A significant but Risky Proyect”, en Eipascope, nº 2, 2002, pp. 16-24; S., REIFEGERSTE, “L’articulation du droit communautaire et du Droit National de la Concurrence. Le règlement nº 1/2003 du Conseil du 16 décembre 2002 relatif à la mise en oeuvre des régles de concurrence prévues aux articles 81 et 82 du Traité CE”, La semaine juridique, Ed. Générale, nº 15-16, 9 avril 2003, p. 657; A. RILEY, “EC Antitrust Modernisation: The Commission Does Very NiceThank you! Part One: Regulation 1 and the Notification Burden”, European Competition Law Review, 2003, nº 11, pp. 605-606; A. RILEY, “EC Antitrust Modernisation: The Commission Does Very NiceThank you! Part Two: Between the Idea and the Reality: Decentralisation under Regulation 1”, European Competition Law Review, vol. 24, nº 12, December, 2003, pp. 657-672; B.J. RODGER, “The Commission White Paper on modernisation of the rules implementing Articles 81 and 82 E.C Treaty”, European Law Review, 1999, pp. 653 to 663; A. SCHAUB, “Modernisation of the EC Competition Law: Reform of regulation n. 17”, Fordham International Law Journal, Mars, 2000; A. SCHAUB, R. DOHMS, “Das Weissbuch der Europäischen Kommission über die Modernisierung der Vorsriften zur Anwendung der Artikel 81 und 82 EG-Vertrag”, Wirtschaft und Wettbewerb, 1999, pp. 10551070; W. WILS, “The modernisation of the Enforcement of articles 81 and 82 EC: A legal and economic analisys of the Commission´s proposal for a new Council Regulation repalcing regulation n. 17”, Fordham International Law Journal, junio 2001. 33 INTERNATIONAL LAW that would give them a personal interpretation of the assessment that the practice deserves. This private advisers would base its opinion in precedent decisions of the Commission or the Court, but will not be able in any case to tell the opinion of the authority in charge of the procedure –and probably sanction– of that particular case30. We consider that this non equal treatment of the different situations could let some companies in a non fair situation and could result in a situation of lack of protection. D. THE PREJUDICIAL CONSEQUENCES OF THE CRIMINAL PROCEEDINGS. THE PREVAIL OF JUDICIAL PROCEDURE OVER THE ADMINISTRATIVE ONE IN THE SPANISH LEGAL ORDER In this chapter we would like to study the relationship among the administrative procedures that can finish in a punitive sanction and the judicial procedures in the Spanish legal system and in special we would like to analyse the influence of this situation in the implementing of European Competition Law. In special we have to bear in mind Spanish interpretation of protection of the principle of interdiction of double jeopardy that in the continental systems is called non bis in idem31. The new system settled down by the R 1/03 and all the Commission notices of development, is based, as we have already studied, in a decentralized system of parallel competence in the application of Articles 30 S. O’KEEFFE, “First among equals: the Commission and the national courts enforcers of EC competition law”, European Law Review 2001, pp. 301-311. 31 M, BÖSE, Strafen und Sanktionen im Europäischen Gemeinschaftsrect. Studien zum Internationales Wirtschaftsrecht und Atomenergierecht. Band 94, Institut für Volkerrecht der Universität Göttingen, Ed. Karl Heymans, Berlín, 1996, p. 175; K. LILLICH, Das Doppelstrafverbot bei Kartelldelikten im deutchen Recht und im Recht der Europäischen Gemeinschaft, Ed. Dunker & Humblot, Schriften zum Prozeßrecht, Band. 56, Berlín, 1978, pp. 66, H.G. SCHERMERS, “Non Bis in Idem”, F. CAPOTORTI, C.D. EHLERMANN, J. FROWEIN, F. JACOBS, R. JOLIET, T. KOOPMANS, R. KOVAR, Du Droit International au Droit de l’integration. Liber Amicorum Pierre Pescatore, Eds. Nomos, Baden Baden, 1987, pp. 601-612. 34 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. 81 and 82 of the Treaty. That change implies an increment in the role that is recognised to the national authorities both administrative and judicial protecting the public interest. The courts and tribunals of the EU member states are called upon to apply Articles 81 and 82 of the Treaty in lawsuits between private parties and also as public enforcers32. If we analyse the principles of allocation it is more than foreseeable that, in some cases in which we can find a material link between the infringement and our territory, the Spanish administrative authorities will be considered well placed to deal with a case33 . Then the authority will have to investigate certain behaviours that, if considered contrary to the community rules, would be sanctioned by our national authority34. We know also that Article 3 of the Council Regulation recognise again, and against the proposal of 2000, the cumulative application of national and European law (doble barrera). By means of article 3, the same behaviour can be considered contrary to the European competition law and also contrary to the national law35. The application of European 32 Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC Officcial Journal C 101 27.04.2004, pp. 54-64. 33 Commission Notice on cooperation within the Network of Competition Authorities Officcial Journal C 101 27.04.2004, pp. 43-53. 34 A. PETITBO, L. BERENGUER “La aplicación del derecho de la competencia por los órganos jurisdiccionales y administrativos” pp. 25-70; S., HIERRO ANIBARRO, “La evolución de los órganos españoles de defensa de la competencia desde la perspectiva del derecho comunitario”, Noticias de la UE, nº 226, noviembre de 2003, pp. 65-76. 35 A.L. CALVO, M.P. CANEDO, “Comentarios al Libro Blanco de la Comisión sobre modernización de las normas de aplicación de los artículos 81 y 82 del TCE en relación con el principio non bis in idem”, A.L. CALVO CARAVACA, P. BLANCO MORALES LIMONES, Derecho europeo de la competencia, Ed. Colex, Madrid, 2000, pp. 407428; N. COLETTEBASECQZ, “Une conséquence de la nature pénale de la sanction communautaire au niveau des garanties procédurales: l’application du principe non bis in idem”, La justice pénale et l’Europe. Travaux des XV journées d’études juridiques Jean Dabin organisées par le Département de criminologie et de droit pénal, Ed. Bruylant, Bruselas, 1996, pp. 463-472; G. DANNECKER, “La recente giurisprudenza della Corte federale di giustizia sul significato dei principi ‘nullum crimen sine lege’ e ‘ne bis in idem’ per il diritto penale e penale-amministrativo dell’economia”, Rivista Trimestrale di Diritto Penale dell’Economia, Fasc. 2-3, 1990, p. 437; S. FARINELLI, “Sull’applicazione del principio ne bis in idem tra gli 35 INTERNATIONAL LAW competition law can restrict but not prevent the application of national law, in the Spanish case the Act 16/8936. Apart from the administrative legislation, in the Spanish legal system we have in our Criminal Code article 284 that typify and impose criminal sanctions to certain behaviours considered contrary to the competition because of their influence in the market and the consumers37. The same behaviour, agreement, concerted or unilateral practice, can therefore imply a triple infringement. Firstly an infringement to the internal competition law with the possibility of administrative sanction imposed by the Spanish administrative authority Spanish Competition Court. Secondly, an infringement to the European competition law with the possibility of administrative sanction imposed by the Commission or a national authority that would be the same Spanish Competition stati membri della comunità europea”, Rivista di Diritto Internazionale, 1991, pp. 878-909. M. PRALUS, “Etude en droit pénal international et en droit communautaire d’un aspect du principe non bis in idem: non bis”, Revue du Science Criminelle, nº 3, juillsept. 1996. pp. 551-574, o J.H. ROBERT, “Application ou non application de la regle non bis in idem entre les sanctions pénales, civiles et administratives”, Archives de Politique Criminelle, 1984, pp. 136-144. H.G. SCHERMERS, “Non Bis in Idem”, F. CAPOTORTI, C.D. EHLERMANN, J. FROWEIN, F. JACOBS, R. JOLIET, T. KOOPMANS, R. KOVAR, eds. Du Droit International au Droit de l’integration. Liber Amicorum Pierre Pescatore, Nomos, Baden Baden, 1987, pp. 601-612. 36 J. BASEDOW, “Souveraineté territorialité et globasisation des marchés: Le domaine d’application des lois contre les restrictions de la concurrence”, Recueil des cours de l’Academie de Droit International de La Haye, 1997, vol. 264, Ed. Marthinus Nijhoff, La Haya, 1998, pp. 9-178; J. S., VENIT, “Brave new world: The modernization and decentralization of enforcement under articles 81 and 82 of the EC Treaty”, Common Market Law Review, nº 40, 2003, p. 545; J.P. VIENNOIS, “La portée du droit communautaire de la concurrence et le mythe du camp d’application exclusif du droit national”, Revue Trimmestrielle de Droit Communautaire, 2002, pp. 1 to 16; J. P. VIENNOIS, “Rapports entre droit Communautaire de la concurrence et droit national: Les apports du réglement CE nº 1/2003 du 16 Décembre 2002”, La semaine juridique, Entreprise et affaires, 2003, nº 5 p. 1. 37 The text of the article is “Se impondrá la pena de prisión de seis meses a dos años o multa de 12 a 24 meses, a los que, difundiendo noticias falsas, empleando violencia, amenaza o engaño, o utilizando información privilegiada, intentaren alterar los precios que habrían de resultar de la libre concurrencia de productos, mercancías, títulos valores, servicios o cualesquiera otras cosas muebles o inmuebles que sean objeto de contratación, sin perjuicio de la pena que pudiera corresponderles por otros delitos cometidos”. 36 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. Court. Finally a criminal infringement with the possibility of a criminal sanction imposed, of course, by the competent court or tribunal. We are not going to study here the problems that could imply in our system the cumulative application of two administrative sanctions imposed to the same practice38. The not very clear writing of article 3 of the Council Regulation implies serious interpretation problems that are common to all the member States. We are going to restrict our comments to a reflection on the possible implications that can have in our system the beginning of a criminal prosecution39. In our legal system and after the entry into force of the Constitution of 1978, the interpretation that has been imposed of the principle of double jeopardy (non bis in idem) implies a really high level of guarantee for the parties40. Either because of historical or political reasons or because of the youth of our system of constitutional guarantees, it can be considered that the Spanish legal order is one of the European systems where the fundamental rights of the individuals are respected with more zeal. This statement is clear both from the point of view of the law and also from the point of view of its application and 38 We could be thinking about different situations. The first one implies the implication of two different authorities in application of different legislation (Spanish competition court TDC in application of internal law and the Commission in application of European law). The second one implies the implication of the same authority in application of those mentioned rules (Spanish competition court TDC applying national and European law). 39 T.H. WEIGEND, “The legal and practical problems posed by the difference between criminal law and administrative law”, Revue International de Droit Penal, 1988, nº 1 and 2, p. 84. 40 J. GARBERI LLOBREGAT, El Procedimiento administrativo sancionador. Comentarios, Jurisprudencia, Formularios y Legislación, Ed. Ed. Tirant Lo Blanch, Valencia, 1994, pp. 177; E. GARCÍA DE ENTERRÍA, “La incidencia de la Constitución sobre la potestad sancionadora de la Administración”, Revista Española de Administración Pública, nº 29, 1981, p. 362; S. LORENZO, Sanciones Administrativas, Ed. Julio César Faira, Uruguay, 1996; A., NIETO, “El principio non bis in idem”, Revista Vasca de Administración Pública, 1990, nº 28, pp. 157-170; J. M. TRAYTER JIMENEZ, V. AGUADO I CUDOLA, Derecho Administrativo Sancionador: Materiales, Ed. Cedes, Derecho Administrativo, Barcelona, 1995, pp. 71-88; J.J.QUERALT, El Principio 37 INTERNATIONAL LAW interpretation41 . This remark can be applied to the rights of defence and principles that inspire all the procedure that could finish in an administrative sanction, and must be even underlined dealing with the respect of the mentioned principle of double jeopardy (non bis in idem)42. We can conclude that our legal system implies a higher level of guarantee than the one of the Council of Europe Rome Convention for the Protection of Human rights and Fundamental Freedoms of 195043. Art. 6 of that mentioned Convention restricts the protection of the principle to the criminal proceedings44. However, after the famous judgement of the European Court of Human Rights in case ÖZTÜRK45, we have an independent concept of “criminal matters” that lets us apply that principles, under certain conditions, to the punitive administrative non bis in idem, Ed. Tecnos, Colección Jurisprudencia Práctica, Madrid, 1992, p. 9; S. REY GUANTER, Potestad sancionadora de la Administración y jurisdicción penal en el orden social, 1990, p. 111. 41 The historical and political reasons are analysed by F.J. LEÓN VILLALBA, Acumulación de sanciones penales y administrativas, Sentido y alcance del principio ne bis in idem, Ed. Bosch, Barcelona, 1998, pp. 31-77. 42 F. SANZ GANDASEGUI, La potestad sancionadora de la Administración: la Constitución española y el Tribunal Constitucional, Ed. Revista de Derecho Privado, Madrid, 1985, p. 129. 43 T. MERON, Human Rights and Humanitarian Norms as Customary law, Ed. Claredon Paperbacks, Oxford, 1991, p. 97; H.G. SCHERMERS, “Non Bis in Idem”, Du Droit International au Droit de l’integration. Liber Amicorum Pierre Pescatore, F. CAPOTORTI, C.D. EHLERMANN, J. FROWEIN, F. JACOBS, R. JOLIET, T. KOOPMANS, R. KOVAR, Ed. Nomos, Baden Baden, 1987, p. 607; COUNCIL OF EUROPE. The administration and you. Principles of administrative law concerning the relations between administrative authorities and private persons. A handbook, Ed. Council of Europe Publishing, 1996, p. 30. 44 R. GARCIA ALBERO, ‘Non bis in idem’ Material y Concurso de Leyes Penales, Ed. Cedes, Derecho penal, Barcelona, 1995, p. 88. 45 Judgement of February 21 1984. Publications of the European Court of Human Rights, Series A, vol. 73. The matter deals with a Turkish citizen in Germany, that appealed before the tribunals a monetary sanction that had been imposed applying the Gesetz über Ordnungswidrigkeiten 1968, because of a traffic infringement. Mr. Öztürk alleged violation of the guarantees of the article 6.3 CEDH and, when being rejected its pretense before the internal tribunals it appealed before the European Commission of Human rights. 44 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. by the general rules on administrative procedure (art. 50 Spanish Competition Act). The mentioned rules establish as one of the governing principles of all Spanish administrative procedure, the principle of legality of the Administration. In fact this principle is considered a guarantee of the individuals that protects them against the power of discretion of the Administration. That principle would prevent the administration in our system to admit a complaint conditioned to the informer’s impunity. The most similar thing that we have in our system would be the system called of conventional termination of the procedure (art. 36 bis of the Spanish Competition Act)58. That mentioned article foresee the possibility to reach an agreement among the individual and the Administration that puts an end to the procedure and imply a reduction of the sanction imposed if a voluntary payment of the sanction agreement takes place before the moment of adoption of the final decision59. It is important to underline that the application of the legality principle is not against the application of what we call principio de oportunidad that governs the Spanish administrative procedure exactly the same as the European one (art. 1.3 Spanish Competition Act)60. In application of that principle, the administration could decide not to begin proceedings due to reasons of general interest. They retain full discretion in deciding whether or not to investigate a case. This possibility does not seem to be, in our opinion, a good way to solve the problem that we have outlined. In special because we have to take into account that the system of leniency seeks to begin procedures that conclude in the sanction of the most serious infringements to the rules of competition law. That is why 58 M. PEDRAZ, “Cuestiones que plantea la aplicación en España de los sistemas de clemencia en defensa de la competencia”, Anuario de Competencia, 2002, pp. 327362. 59 See also the art. 88 of Act 30/92 that contains the general procedure of the Administration in Spain. Also, the art. 8 of the Real Decreto 1398/1993, foresee the end of the procedure and a reduction of sanctions but not impunity. 60 J.C. FOURGOUX, “L’exercise du pouvoir discretionnaire de la Commission des Communnautés européennes en matière de concurrence. Tentative d’extension et coup de frein par la juridiction communautaire”, Revue de Science Criminelle, 2002, pp. 599-603. 45 INTERNATIONAL LAW we do not consider as a reasonable possibility in fact that of foreseeing as the best solution the inactivity of the administrative authority. On the other hand with this system we could not guarantee impunity for the complainant. If we do not have a procedure, we will not be able to guarantee that the administration will not modify its view of he situation by means of the respect to the interdiction of double jeopardy. This option would only be possible if, as in the European system, the complainant was acquitted and, as we have seen, that is not possible in our system. As another problem related to this situation, we have to take into account that, as we said before, in our legal system we have criminal rules dealing with anticompetitive measures and that situation would also be considered problematic with a hypothetical program of leniency. With this situation the complainant before an administrative authority, must take into consideration that he can be considered as self-charged in those behaviours that could imply a criminal sanction. In our legal system if an administrative authority have knowledge of some practices that could deserve a criminal sanction, that authority would have to let the competent criminal court know about the facts. In the criminal field the solution to our problem, far from being easier, is somehow more complicated. In this field we have in Spain an internal rule of the Public Prosecution Service (1989) that settles down what we call the principle of consensus61. In accordance with that rule, the individual that recognises facts that can be considered as a crime and admit the penalty can see the sanction reduced. Furthermore, in order to make this solution possible, and if a third person is part in proceedings, that third person must accept the agreement and the accused person must also assume the civil liability directly derived of the crime. Even in that case, the court can not make the sanction disappear. 61 See the judgement of the Tribunal de lo Penal of Madrid of 21 January 2003 in application of the art. 285 of our Criminal Code. 46 ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. Keeping in mind that the administrative authority is forced to stay the proceedings when a criminal procedure begins, it is difficult to imagine how a program of leniency could be settled down in Spain and this situation takes us again before a problem of forum shopping. Is it necessary to think about the possible uniform application of the European competition law when in some states one can follow a program of leniency and in other states this situation is not possible? will not this situation decide the complainants to go before the authorities of those states in which this possibility exists instead of going to the best placed to deal with the case if these do not have these advantages? Could an authority that has received the complaint consider that another authority of the Net is better placed to deal with the case and decline jurisdiction to carry out the prosecution? What could be the consequences of that situation in relation with the leniency programs? In what situation would this leave the complainant that is member of the agreements? Would be perhaps the Commission the one who should deal with the case to avoid the leniency applicant’s lack of protection? Finally this question outlines another query. The Notice on the cooperation within the Network of competition authorities settles down that the competition authorities will transmit to the other members of the Network with the consent of the applicant. In such cases, however, information submitted to the network will not be used by the other members of the network as the basis for starting an investigation on their own behalf whether under the competition rules of the treaty or in the case of national authorities under the national competition laws (administrative or criminal in our legal order) or other laws (like for example the legislation on tax law)62. In the same Notice we have a group of situations in which the consent of the applicant for the transmission of information to other authorities of the network is not considered necessary. The first one talks about the situations in which the national authority has also received a leniency application relating to the same infringement from the same applicant as the transmitting authority. The second one deals directly with the national 62 See pr. 39 of the Commission Notice. cit. 47 INTERNATIONAL LAW authority. If the national authority has provided a written commitment that neither the information transmitted to it nor any other information it may obtain, will be used by it or by any other authority to which the information is subsequently transmitted to impose sanctions. a) on the leniency applicant; b) on any other legal or natural person covered by the favourable treatment offered by the transmitting authority as a result of the application made by the applicant under its leniency programme; c) on any employee or former employee of any of the persons covered by a) or b). In the Spanish legal system this commitment could not be provided due to the principle of legality that, as we have already explained, governs the administrative procedure. For that reason we think that we could already consider to the Spanish NCA as outside of the information that other authorities receive in exercise of the programs of leniency63. However, we have to outline that the Notice of the Commission doesn’t avoid, at least expressly, the possibility to transmit the information to those authorities that, committed not to impose sanctions, could however have the obligation of informing to other authorities, for example of the commission of a crime. This way the Notice of the Commission would be protecting the applicant against the application of the national competition law neglecting the possibility that he could be subject of more serious sanctions including the criminal ones. V. CONCLUSION Even if we must conclude that from an institutional point of view Spanish legal system is well positioned to implement the new european model of control of the practices against the competition, we must underline that an important group of problems are now without solution. 63 In fact the web page of the Commission contains information over the Countries that have provided the commitment and Spain is not in the list. Comisión http:// europa.eu.int/comm/competition/antitrust/legislation/ list_of_authorities_joint_statement.pdf (last access 20may 2004). Perhaps, as with the ancient R. 17, is in practice of the Commission and control of the European Court of Justice where the practitioners will have to look for these solutions. Perhaps risk of forum shopping and protection against double jeopardy are the most important. Once again, principle of efficient application of the rules by the authorities has been considered as more important as legal certainty for the companies. 4ALFONSO-LUIS CALVO C., MARÍA PILAR CANEDO A., NATIVIDAD GOÑI U. 8