Key Benefits:
JOHN CARLOS I
KING OF SPAIN
To all who present it and understand, Know: That the General Courts have approved and I come to sanction the following Law.
EXPLANATORY STATEMENT
The orientation of the Spanish economic policy rests on the conviction that stable and non-inflationary growth of the economy and, consequently, job creation, require a preponderant role to be given to the good functioning of the markets. In addition, the integration of the Spanish economy into the Community context and, in particular, in the Economic and Monetary Union, conditions the government's margin of action on the design of macroeconomic policy, in particular on the monetary policy. In this context, micro-economic policies and, in particular, the policy of defence of competition, are particularly relevant.
Law 16/1989 of 17 July on the Defence of Competition was born with the aim of providing the public authorities with an effective instrument to ensure the existence of sufficient competition and to protect it against any attack contrary to the public interest, taking inspiration from Community competition policy rules.
The deepening of the process of liberalization of the markets facing the Spanish economy makes it necessary to strengthen a policy of defense of competition, which guarantees the effectiveness of the liberalizing effort, avoiding the behaviour of economic operators distorts the proper functioning of the markets and deprives consumers of their advantages.
this end, in the Liberalization Plan approved by the Council of Ministers on 21 February 1997, the reform of the system of defence of competition was set as one of the Government's priority objectives, This Law, which culminates the reform process initiated with the Royal Decree-Law 6/1999 of 16 April 1999, of urgent measures of liberalization and increased competition in the field of merger control.
This Law, based on the premise that the competition policy has basic and generally a horizontal character, in line with what has been stated in the preceding paragraphs, seeks to deepen the mechanisms for the effective functioning of the markets, with full respect for the provisions of the judgment of the Constitutional Court which has set out various provisions of Law 16/1989 of 17 July 1989, in so far as the The substance of the reform only concerns aspects of the legal system of defence of the The Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance had powers in this field may be applied by bodies incorporated in one or other administration in accordance with the provisions of the said legal text.
Therefore, and in compliance with the provisions of the Constitutional Court, which declares the validity of the current system, a mandate is introduced to the government to submit to the Congress of Deputies a bill for the the criteria for determining the determining connection between the allocation to the State and the Autonomous Communities of powers, provided for in the legal framework for the defence of competition, relating to the knowledge and application of State rules on prohibited and authorised conduct.
The Law also seeks to provide resources to the bodies responsible for the defense of competition, since in these organs the scarcity of means leads to the practical impossibility of fulfilling its aims. However, in a context such as the current budgetary austerity, it is intended that the largest allocation of resources will not be borne entirely by the citizens ' group, for which a fee is established for the analysis of the economic concentration.
The current reform does not fundamentally alter the classification of agreements and restrictive practices in competition, while maintaining the rates already laid down in Law 16/1989 of the Defense of Competition. However, the approval after Law 16/1989 of Law 3/1991 of 10 January of Unfair Competition, advises to establish clearly that the action of the competition bodies in relation to Article 7 of Law 16/1989 must limited to those unfair acts which seriously distort the conditions of competition on the market with a serious effect on the public interest, leaving the ordinary courts with the knowledge and prosecution of unfair conduct of another type.
In order to cooperate with the Administration of Justice, and to allow for faster processing of the processes, the Court of Defense of the Competition will be able to elaborate, at the request of the competent courts, a non-binding report on the effects that conduct contrary to this Law may have on the markets, sectors and operators concerned, and in particular on the origin and value of any right of compensation for the irrogated damage and damage.
In order to benefit the economic operators of a more agile procedure, it is envisaged that those operations which do not endanger the conditions of competition on the market, subject to commitments of the parties. This implies that the possibility of a conventional termination of a general nature in Law 30/1992, of 26 November, of the Legal Regime of the Public Administrations and of the Public Administration of the European Union, is to be introduced in the procedures for defence of competition. Common Administrative Procedure.
In the field of public aid, experience has shown that the current Article 19 of the Law establishes a little effective instrument for controlling those that distort or distort competition. This suggests that the Minister for Economic Affairs and Finance should complete the initiative to enable the Court to examine cases of aid, with the possibility that this study may also be initiated on its own initiative.
As for the sanctioning procedure, concrete reforms are introduced, aimed at achieving greater effectiveness of the competition's defence bodies.
To this end, the possibilities of recourse against incidental questions are limited, without this implying a disservice of the rights of the parties, since their right of defense can be totally complete in the phase of the proceedings before the Court. Experience has taught that the proliferation of resources on incidental and often underfunded issues greatly hampers the procedure to the detriment of the interest of the managed themselves.
The special nature of the procedure for the application of the competition rules and, in particular, the penalty procedure provided for therein is established. The rules on administrative procedures, contained in Law No 30/1992 of 26 November 1992, will only apply with a supplementary nature.
In addition, the functions of the competition bodies are established, as a result of the planned reform and the other laws, by defining them more precisely in relation to those entrusted to other bodies and institutions. administrative, sectoral competence.
Finally, the legal status of the Court of Defense of Competition is maintained.
Article first. Amendment to Article 1 (3)
Article 1 (3) of Law 16/1989, of 17 July, is amended to read as follows:
" Article 1. Prohibited conduct.
3. The competition authorities may decide not to initiate or terminate the procedures provided for in this Law in respect of conduct which, because of its minor importance, is not capable of significantly affecting competition. "
Article 2. Amendment to Article 2.
Article 2 of Law 16/1989, of July 17, is amended to have the following content:
" Article 2. Conducted by Law.
1. Without prejudice to the possible application of the Community provisions on the defence of competition, the prohibitions in Article 1 shall not apply to agreements, decisions, recommendations and practices resulting from the application of a law.
On the contrary, they will apply to situations of restriction of competition arising from the exercise of other administrative powers or are caused by the action of public authorities or public undertakings. This legal protection.
2. The Court of Defence of Competition may make a reasoned proposal to the Government, through the Ministry of Economic Affairs and Finance, to adopt or urge the competent public authority, where appropriate, to amend or abolish the of the restriction of competition established in accordance with the legal rules. "
Article 3. Amendment to Article 3 (2).
Article 3 (2) of Law 16/1989, of 17 July, is amended to read as follows:
" Article 3. Cases of authorisation.
2. They may also be authorised provided that they are justified by the general economic situation and the public interest, the agreements, decisions, recommendations and practices referred to in Article 1, or categories of the same, which:
(a) Taim to defend and promote exports, provided that they do not alter competition in the internal market and are compatible with the obligations resulting from international conventions ratified by Spain, or
b) Propose a sufficiently significant elevation of the social and economic level of depressed areas or sectors, or
(c) Tending to their minor importance, they are not able to significantly affect competition. "
Article 4. Amendment to paragraph 1 and addition of two new points (f) and (g) to Article 6 (2).
1. Article 6 (1) of Law 16/1989 of 17 July 1989 is amended as follows:
" abusive exploitation by one or more companies is prohibited:
a) From your domain position in all or part of the domestic market.
(b) The situation of economic dependence in which its undertakings or suppliers which do not have an equivalent alternative for the pursuit of their business may be found. This situation will be presumed when a supplier, in addition to the usual discounts, must provide its customer with other additional advantages that are not granted to similar buyers. "
2. Two new points (f) and (g) are added to Article 6 (2) of Law 16/1989 of 17 July, with the following content:
" (f) The rupture, even in a partial manner, of an established commercial relationship without prior written notice and with a minimum of 6 months ' notice, except that it is due to serious breaches of the conditions agreed by the supplier or in case of force majeure.
g) Obtaining or attempting to obtain, under threat of breakdown of the commercial relations, prices, conditions of payment, modalities of sale, payment of additional charges and other conditions of commercial cooperation not collected in the general conditions of sale which are agreed upon. "
Article 5. Amendment of Article 7.
Article 7 of Law 16/1989, of July 17, has the following wording:
" Article 7. Distortion of free competition by unfair acts.
1. The Court of Defense of the Competition shall know, in the terms that this Law establishes for prohibited conduct, of acts of unfair competition as long as the following circumstances are present:
(a) That this act of unfair competition seriously distorts the conditions of competition on the market.
b) That such serious distortion affects the public interest.
2. Where, in the opinion of the Competition Defence Service, these circumstances are not met, the proceedings shall be closed. '
Article 6. Addition of new paragraphs 5 and 6 to Article 10.
Two new paragraphs 5 and 6 are added to Article 10 of Law 16/1989 of 17 July, with the following content:
" Article 10. Penalty fines.
5. No fines shall be imposed for infringement of Article 1 if it has been lodged prior to the initiation of information prior to the opening of the sanctioning file, notification A/B to the services of the European Commission in application of the Council Regulation of EEC No 17/62 of 6 February.
6. Irrespective of the provisions of the foregoing paragraphs of this Article, if the Court of Defence of Competition appreciates bad faith or serious fear in the performance of one of the parties to the defence bodies of the competition, it may impose a fine of not more than 5,000,000 pesetas or 30,050,61 euro. '
Item seventh. Amendment of Article 11 of the Law.
Article 11 of Law 16/1989 of 17 July is amended as follows:
" Article 11. Periodic penalty payments.
Court of Defence of Competition, irrespective of fines, may impose on undertakings, associations, unions or groups of undertakings, and economic operators in general, periodic penalty payments of 10,000 to 500,000 pesetas or 60.10 to 3,005.06 euros per day in order to force them:
(a) To the cessation of an action that has been declared prohibited in accordance with the provisions of the Law.
b) To the removal of the distorting effects of the competition conditions caused by an infringement.
(c) Compliance with the commitments made by those subjects in the framework of a conventional termination agreement of the procedure.
d) Compliance with the provisions of Article 46.5 of this Law. "
Article 8. Amendment of Article 12.
Article 12 of Law 16/1989 of 17 July is amended as follows:
" Article 12. Prescription of infringements and penalties.
1. They will prescribe:
a) At the age of four, the violations provided for in this legal text. The term of the prescription shall begin to run from the day on which the offence was committed.
b) At the age of four, the sanctions.
2. The prescription is interrupted by any act of the Tribunal or the Service of Defense of the Competition, with formal knowledge of the person concerned, which tends to the investigation, investigation or prosecution of the offence.
3. The prescription is also interrupted by the acts carried out by the interested parties in order to ensure, complete or execute the sanctioning agreements. "
Article ninth. Addition of a new paragraph 3 to Article 13.
A new paragraph 3 is added to Article 13 of Law 16/1989 of 17 July, with the following content:
" 3. The Court of Defence of Competition may, where required by a competent court, issue a report on the provenance and the amount of the compensation which the authors of the conduct referred to in Articles 1, 6 and 7 of the This Law must satisfy the complainants and third parties who have been harmed as a result of them. "
Article 10. Amendment of Article 19.
Article 19 of Law 16/1989 of 17 July is amended as follows:
" Article 19. Public aid.
1. This Article shall be without prejudice to Articles 87 to 89 of the Treaty on European Community, Article 4 (c) of the Treaty on European Coal and Steel and Regulation (EC) No 659/1999. Council, of March 22.
2. For the purposes of this Law, public aid is understood to be the contribution of resources to economic operators and public or private undertakings, as well as to the production of public funds or any other advantage granted by the authorities or public entities which would lead to a reduction in the burden on economic operators and undertakings on market conditions or which do not imply a consideration in terms of market conditions. Any other measure having equivalent effect to that of the former which distorts competition shall also be regarded as aid.
3. The Court of Defence of Competition, or at the request of the Minister for Economic Affairs and Finance, shall analyse the criteria for granting State aid in relation to its effects on conditions of competition for the purpose of issuing a report to the Council of Ministers. That report shall be public. The Council of Ministers, in the light of the content of the report of the Court of Defence of Competition, shall decide, as the case may be, to propose to the public authorities the deletion or amendment of the above criteria and, where appropriate, the other measures leading to the maintenance or restoration of competition. This is without prejudice to the powers conferred on the European Commission in this field. "
Item 11th. Amendment of Article 21.
Article 21 of Law 16/1989, of 17 July, is amended and is amended as follows:
" Article 21. Composition.
1. The Court of Defense of the Competition is composed of eight vowels and a President appointed by the Government on the proposal of the Minister of Economy and Finance, among jurists, economists and other professionals of recognized prestige.
2. The appointment of the President and the vowels will be for five years renewable for one time. Half of the members of the Court will be renewed every two and a half years.
3. The vowels of the Tribunal will have the consideration of high charges. Where the appointment is made to persons at the service of the public authorities in active employment, they shall be subject to special or equivalent services.
4. The Court shall elect, among the vowels, a Vice-President. In the event of a tie, the most senior vowel in the position will be elected and, at the same age, he will be the oldest. The Vice President shall replace the President in cases of vacancy, absence or illness.
5. As long as the appointment of Vice-President does not occur, and in the absence of the President and the Vice-President, the Presidency will exercise the most senior vocal and, at the same time, the oldest one.
6. The Court shall be assisted by a Registrar. '
Article twelfth. Amendment of Article 24.
Article 24 of Law 16/1989 of 17 July is amended as follows:
" Article 24. Operation of the Court.
1. The Court of Justice of the Competition is validly understood to be the assistance of the President or Vice-President and five vowels.
2. The agreements shall be adopted by an absolute majority of votes of the assistants. In the event of a tie, the vote of the one who is present will decide.
3. The Court may approve the establishment of an internal rules of procedure in which it regulates its internal organisation and operation. The rules of procedure shall be published in the Official Gazette of the State. "
Article 13th. Amendment of Article 25.
Article 25 of Law 16/1989 of 17 July is amended as follows:
" Article 25. Competition.
Competence of the Court of Defense of Competition:
a) Resolve and rule on the matters that are attributed by this Law.
(b) Authorize the agreements, decisions, recommendations and practices referred to in Article 1, in the cases and with the requirements laid down in Article 3.
(c) Apply in Spain Articles 85.1 and 86 of the Treaty on European Community and its secondary legislation.
(d) to report on the economic concentration of the Community dimension which the European Commission has submitted in application of the Community merger control rules by the Commission.
e) Dictate the projects for the opening of large commercial establishments, as established by Law 7/1996, of 15 January, for the Management of Retail Trade.
f) Interesar the case instruction by the Competition Defense Service.
g) Perform the functions of arbitration, both in law and equity, that are entrusted to it by the laws, and in particular those established in Article 7 of Law 21/1997, of July 3, regulating emissions and retransmissions of competitions and sporting events.
(h) To elaborate the report that, as for any damages compensation, provides for Article 13 of this Law.
(i) to prepare the report which, in the field of public aid, provides for Article 19 of this Law. "
Article 14. Amendment of Article 26.
Article 26 of Law 16/1989 of 17 July is amended as follows:
" Article 26. Advisory functions.
1. The Court of Defence of Competition may be consulted in matters of jurisdiction by the Legislative Chambers, the Government, the various ministerial departments, the Autonomous Communities, the Local Corporations, the Chambers of Commerce and business, trade union or consumer organisations and users.
2. The Court shall promote and conduct research and research in the field of competition.
3. The Court shall inform the draft laws or proposals amending or repealing, in whole or in part, the present legal text, as well as the draft regulations implementing it. "
Item 15th. Amendment of Article 27.
Article 27 of Law 16/1989, of July 17, is amended to have the following content:
" Article 27. Powers of the plenary session.
It is up to the Court of Defense of the Competition:
(a) Develop its internal rules of procedure, in which it will establish its administrative operation and the organization of its services.
b) Choose from among its members to the Vice President.
c) Solve on recusal, incompatibilities and disciplinary corrections and appreciate the inability and gross non-compliance of his duties by the President, Vice President and Vowels.
(d) Appoint and agree to the Secretary's end.
e) Propose or, where appropriate, inform the project of the relationship of the staff to the service of the Tribunal.
f) Prepare the preliminary draft general budget of the Court.
g) Develop an annual memory.
h) Maintain relations with other similar organisms. "
Article sixteenth. Amendment of Article 28.
Article 28 of Law 16/1989, of July 17, has the following wording:
" Article 28. Duties of the President.
1. They are the functions of the President of the Court of Defense of Competition:
(a) Call the plenary on its own initiative or at the request of at least three of the vowels and chair it.
b) Establish the criterion for the distribution of cases between Salas and Sections.
c) Maintain good order and government of the Court.
d) To account for vacancies occurring in the Court.
e) Resolve the issues not assigned to the Court's plenary session.
f) Representing it in relationships with other public bodies.
g) Exercise leadership in relation to the Tribunal's staff.
h) Order the Court's expenses.
2. The President may delegate to the Vice-President those powers which he considers appropriate. "
Article seventeenth. Amendment to Article 31.
Article 31 of Law 16/1989 of 17 July is amended as follows:
" Article 31. Functions of the Competition Defence Service.
They are the functions of the Competition Defense Service:
a) To instruct the files for conduct included in this Law.
(b) To monitor the enforcement and enforcement of the resolutions adopted pursuant to this Law and, where appropriate, to declare the limitation of the action to require compliance with the penalties provided for in Article 12 of this Law. Law.
c) Take the Register of Defense of the Competition.
(d) Study and research in the economic sectors, analysing the situation and degree of competence of each of them, as well as the possible existence of restrictive practices in competition. As a result of the studies and investigations carried out, it may propose the adoption of measures leading to the removal of obstacles to the restriction.
e) Information, advice and proposal on restrictive practices and agreements, concentration and association of undertakings, degree of competition in the internal and external market in relation to the domestic market; and on the other matters relating to the defence of competition.
f) Cooperation, in the field of competition, with foreign bodies and international institutions.
g) To carry out the functions of collaboration between the Spanish Administration and the European Commission in the application in Spain of the Community rules of competition. These tasks shall be carried out in coordination with the competent sectoral departments of the public administration.
h) To exercise the powers conferred on it by Articles 15 to 18 of this Law on merger control.
i) To promote and agree on the conventional termination of procedures dealt with as a result of conduct prohibited in this Law.
j) Report the preliminary draft rules affecting the competition.
k) Direct reports and/or recommendations on matters of defence of competition to any of the Ministerial Departments, Autonomous Communities, Local Corporations, Chambers of Commerce and business organisations, trade unions or consumers and users.
l) To study and submit to the Government the appropriate proposals to amend the Law on the Defense of Competition, in accordance with the dictates of experience in the application of national and Community law. "
Article eighteenth. Amendment of Article 31a.
Article 31a of Law 16/1989, of 17 July, is amended to have the following content:
" Article 31a. Duties of the Director of the Competition Defence Service.
1. It is up to the Director of the Competition Defence Service:
(a) Propose to the Minister of Economy and Finance, for his elevation, in his case, to the Council of Ministers, the guidelines of the policy of defense of the competition in the framework of the economic policy of that.
(b) Propose to the Government, the adoption of exemption regulations provided for in Article 5 of this Law in respect of the categories of agreements, decisions, recommendations and practices referred to in Articles 3.1 and 3.2 of the This Law.
(c) Approve an annual programme of assessment of the consequences of the application of the competition rules to guide the dedication of the media, the evolution of the doctrine and the remedies adopted.
d) Represent the Competition Defense Service.
e) Give publicity in the "Official State Gazette" to the regulations for exemption from Article 5 of this Law.
(f) Deciding on the desirability of calling for the application of the provisions of Article 22 (3) of the Community Merger Control Regulation.
g) To exercise the powers conferred upon you by Articles 15 and 18 of this Law.
2. The Director of the Service of Defense of the Competition has the leadership of the same, being able to exercise all the powers that the present Law attributes to the Service. "
Article nineteenth. Amendment of Article 32.
Article 32 of Law 16/1989, of July 17, is amended and has the following content:
" Article 32. Duties of collaboration and information.
1. Any natural or legal person is subject to the duty of collaboration with the Service of Defense of the Competition, and is obliged to provide at its request, and within ten days, all kinds of data and information necessary for the application of this Law.
The period of ten days referred to in the preceding paragraph may be extended by the Competition Service, either on its own initiative or at the request of the person required, when the difficulty of obtaining data or information thus justifies it.
2. Failure to comply with the obligation laid down in the preceding number shall be sanctioned by the Director of the Service with periodic penalty payments of EUR 60,10 to EUR 3,005,06 for each day of delay in the performance of the duty on the data and the information referred to in the previous paragraph.
3. The transfer of data or a background of a tax nature shall be governed by the provisions of Article 113 of the General Tax Law. "
Article 20. Amendment to Article 33 (2).
Article 33 (2) of Law 16/1989, of 17 July, is amended to have the following content:
" Article 33. Research and inspection functions.
2. Officials may, in the course of the inspections, examine, obtain copies or extract extracts from the books, documents, even accounts and, if necessary, retain them for a maximum period of 10 days. In the course of the inspections, officials may also request oral explanations on the spot. "
Article twenty first. Amendment to Article 34.
Article 34 of Law 16/1989 of 17 July is amended as follows:
" Article 34. Home research.
1. Access to the premises may be carried out with the consent of its occupants or through a judicial injunction.
2. If the occupants ' consent has been given, the authorized official shall show the trade and shall submit a copy of his appointment by the Director of the Competition Defense Service, the subjects under investigation, the data, documents and operations to be the subject of the inspection, the date on which the action is to be carried out and the scope of the investigation.
3. Where there has been opposition to access to the premises or the risk of such opposition is threatened, the Director of the Service shall seek authorization of entry to the Court of the Administrative-Administrative Court, and shall include the data provided for in the previous number, as well as the data required for the proper identification of the premises where the entry is intended.
The competent court shall decide within the maximum period of forty-eight hours.
4. An act signed by the authorised official and one of its occupants shall be lifted from all entries in premises and from the inspection and shall be accompanied, where appropriate, by the list of documents temporarily withheld.
5. The official shall issue a copy of the minutes in the name of the person who has authorised the entry into the premises. If the entry and inspection have been carried out by virtue of judicial authorization, the original of the minutes and the documents withheld, if appropriate, shall be delivered to the Court of Justice, whose Registrar shall take a copy in the name of the official. which has carried out the inspection and another on behalf of the occupant to whom the investigation has been carried out. The official shall also be given the documentation retained.
6. The data and information obtained may only be used for the purposes provided for in this Law. "
Article twenty-second. Amendment of Article 36.
Article 36 of Law 16/1989 of 17 July is amended as follows:
" Article 36. Initiation of the procedure.
1. The procedure is initiated by the Service of Defence of the Competition of Trade or at the request of interested party.
The denunciation of the conduct prohibited by this Law is public; any person, interested or not, can formulate it before the Service, which will initiate file when there are rational indications of its existence.
2. The complaint shall be filed in the form and with the content which is determined to be determined, at least, to contain:
-Name or social reason and address of the complainant and, in the case of acting by means of a representative, accreditation of the representation and address for the purpose of notifications.
-Name or social reason and address of the reported/s.
-Facts from which the existence of infraction and evidence, if any, of the same are derived.
-Legitimate interests in accordance with Article 31 of Law 30/1992, in order to be considered interested in the eventual sanctioning file.
3. In the light of the possible existence of an infringement, the Service may proceed to the instruction of a reserved information before resolving the initiation of the sanctioning case, even with home investigation of the companies involved. Where the Service considers that there is no evidence of infringement of the Law on the Defence of Competition, it may not initiate proceedings and agree on the file of the proceedings.
4. In the providence in which the initiation of the file is agreed, an Instructor and, if applicable, a Registrar shall be appointed, which shall be notified to the persons concerned.
5. If the file is initiated, a succinct note may be published on the main points of the file so that any information may be provided within a period of not more than 15 days.
This note may be published in the "Official Gazette of the State" and, where appropriate, any other means of dissemination that guarantee sufficient publicity.
6. The service may, on its own initiative or at the request of the parties concerned, provide for the accumulation of files where there is a direct connection between them.
7. The Service shall give the Court of Defence the jurisdiction of the complaints received, of the file of the proceedings, of the agreements of conventional termination and of the providences of the opening of files, either on its own initiative or at the request of the interested party. '
Article twenty-third. Addition of a new Article 36a.
A new article, 36a, is added to Law 16/1989 of 17 July, with the following content:
" Article 36a. Assumptions of inadmission and conventional termination.
1. The Competition Defence Service may:
(a) Agree not to initiate proceedings arising from the alleged conduct of the conduct prohibited by Articles 1 and 6 which, because of their minor importance, do not significantly affect the conditions of competence.
b) To agree to the non-initiation of proceedings arising from the alleged conduct of the conduct provided for in Article 7 of this Law when it considers that the circumstances provided for in that article are not present.
(c) Agree to the conventional termination of an investigation which has been initiated on its own initiative or at the request of an interested party for possible infringement of Articles 1, 6 and 7 of the Law, provided that the same does not prove to be contrary to the (a) the provisions of this Law, which are aimed at the completion of administrative action.
2. In conventional termination procedures, the Service will determine who is interested in the matter, so that they can be heard in the course of the matter.
The conventional termination of the proceedings may not be agreed in cases where it is contrary to the legal order and is detrimental to third parties. The conventional termination may not be agreed upon once the specification of facts has been notified.
Agreements for the conventional termination of an investigation must establish as a minimum content the identification of the intervening parties, the personal, territorial and temporal scope, the object of the commitments and the scope of the same. Such agreements shall be adopted by the Director of the Service and those concerned.
Those who prove legitimate interest, and have not taken part in the agreements of conventional termination, may bring proceedings against them before the Court of Defense of the Competition provided for in Article 47 of the Law. "
Article twenty-four. Amendment to Article 37.
Article 37 of Law 16/1989 of 17 July is amended as follows:
" Article 37. Instruction of the sanctioning file.
1. The Competition Defense Service will practice the necessary acts of instruction for the clarification of the facts and the determination of responsibilities.
The facts which may be constitutive of infringement shall be collected in a statement of facts which shall be notified to the alleged offenders so that, within a period of 15 days, they may be satisfied and, where appropriate, propose the evidence that they consider relevant and, closed the probative period, to carry out their assessment within ten days.
The evidence proposed by the alleged offenders will be collected in the Service report, expressing their practice or, if any, denial.
2. The persons concerned may, at any time in the proceedings, submit claims, which shall be taken into account by the Service in writing the report referred to in the following number.
3. The Service, after having instructed the case, shall forward it to the Court of Defense of the Competition, accompanied by a report expressing the observed conduct, its background, its authors, the effects produced on the market, the rating of the They deserve the facts and the responsibilities that correspond to the authors.
4. Where, after the necessary instruction, the Service considers that the existence of prohibited practices has not been established, it shall draw up the proposal for a declaration that the parties concerned shall be notified of the fact that within 10 days of the appropriate claims. Subsequently, the Service may agree to terminate the file with a file of the proceedings. An appeal may be brought against that agreement in accordance with Articles 47 and 48 of this Law. '
Article twenty-fifth. Amendment of Article 38.
Article 38 of Law 16/1989 of 17 July is amended as follows:
" Article 38. Instruction in the authorisation file.
1. The procedure for authorising agreements, decisions, recommendations and practices referred to in Article 3 shall be initiated at the request of an interested party.
2. The application for authorisation shall, in any event, contain all the information necessary to enable it to assess the nature and effects of the conduct and, in particular, the identifying data of the parties involved, the subject matter of the application and the information on the market/s concerned.
3. A dossier for the establishment of agreements, decisions, recommendations or practices prohibited in Article 1 shall be initiated by the persons concerned, who may request that they be declared authorized in accordance with Article 3.
4. In the processing of authorizations the Competition Defence Service shall publish the succinct note provided for in Article 36.5 of this Law, carry out the necessary inquiries, hear the persons concerned and refer the file to the Court, the maximum period of 30 days, with the qualification to be earned.
5. Where the Service considers that the information provided is manifestly insufficient to qualify the application, it shall require the applicant to provide the necessary data and information within 10 days, the time limit being suspended. Thirty days until the requirement is completed.
6. In the cases referred to in Article 3.1 of this same Law, it will be necessary to request the report of the Consumers and Users ' Council. "
Article twenty-sixth. Amendment to Article 40 (2).
Article 40 (2) of Law 16/1989 of 17 July is amended as follows:
" 2. The Court may provide for the practice of any such evidence as long as it is not reproduced in practice before the Competition Defence Service, giving intervention to the persons concerned. "
Article twenty-seventh. Amendment of Article 47.
Article 47 of Law 16/1989, of July 17, is amended to read as follows:
" Article 47. Action against acts delivered by the Competition Defence Service.
The acts of the Competition Defense Service that directly or indirectly decide the substance of the matter, determine the impossibility of continuing a procedure or produce defenseless or irreparable damage to rights or legitimate interests, will be brought before the Court of Defence of the Competition within ten days.
There shall be no objection to the refusal of the application of the evidence requested by interested parties, provided that such decision is taken by a duly substantiated decision and that the evidence for which it is applied (a) be manifestly imparted or unnecessary and, in any event, where they can be applied to the Court.
In such cases, and in all cases where the action is manifestly unfounded, the Court may declare its inadmissibility in a duly substantiated judgment. '
Article twenty-eighth. Amendment to Article 48 (1).
Article 48 (1) of Law 16/1989, of 17 July, is amended as follows:
" Article 48. Formalities and resolution.
1. The appeal will be filed with the Competition Tribunal, which will order the Competition Defense Service to refer the case to the Court with its report within five days. "
Article twenty-ninth. Amendment of Article 50.
Article 50 of Law 16/1989 of 17 July is amended as follows:
" Article 50. Supplement to the Law of Legal Regime of Public Administrations and the Common Administrative Procedure.
The administrative procedures for the defence of competition will be governed by their specific rules and, in addition, by Law No 30/1992 of 26 November 1992 on the legal system of public and public administrations. Common Administrative Procedure. '
Article 30. Addition of a new Article 51a.
A new article, 51a, is added to Law 16/1989 of 17 July, with the following content:
" Article 51a. Relations with other public administrations.
1. The bodies provided for in this Law are the only bodies responsible for the instruction and resolution of the procedures governing the defence of competition.
In the event that other public administrations, by reason of their functions, may have knowledge of facts that they consider contrary to the provisions of this Law, they will be limited to the transfer of the same, and of the (a) to the Competition Defence Service, in order to enable the processing of the relevant files to be initiated, if appropriate.
2. The Competition Defence Service, where necessary for the performance of its duties, may request the cooperation of the competent bodies of the Autonomous Communities.
For the same purpose, the competent services of the Autonomous Communities may prepare for their referral to the Competition Defense Service, and for the purposes provided for in this article, reports on the existence of practices, agreements or conduct which they consider to be contrary to this Law. "
Article thirty first. Amendment of Rule 54.
Article 54 of Law 16/1989 of 17 July is amended as follows:
" Article 54. Sanctions.
1. The penalties imposed pursuant to this Law shall be without prejudice to other responsibilities which may arise in each case.
2. The recovery of the fines shall be carried out in accordance with the provisions of the General Rules of Collection.
3. The amount of the fines provided for in this Law will be entered into the Treasury. "
Article thirty-second. Amendment of Article 56.
Article 56 of Law 16/1989, of July 17, is amended to have the following content:
" Article 56. Maximum time limits for the procedure.
1. The maximum period of the duration of the stage of the sanctioning procedure taking place before the
The Competition Service will be twelve months from the formal initiation of the competition until the referral of the case to the Court of Defense of the Competition or the notification of the agreement that, of any other procedure, to terminate the proceedings before the Service.
The provisions of this paragraph shall be without prejudice to the possible extension of the time limit in accordance with Article 42 (5) and (6) of Law No 30/1992 of 26 November 1992 on the legal framework of the Public administrations and the Common Administrative Procedure.
In any event, the period referred to in this paragraph shall be interrupted in the event of an interposition of the administrative appeal provided for in Article 47 of this Law, or of the approach of incidental issues in which the Article 42.5 of Law 30/1992, of 26 November, of the Legal Regime of Public Administrations and of the Common Administrative Procedure, provides for suspension, as well as when coordination with the European Union or cooperation is necessary with competition authorities from other countries. In such cases, the Service shall account for the termination of the interruption to the persons concerned.
After the period provided for in this paragraph and, where appropriate, the time limit resulting from an extension agreement, without the Service having referred the file to the Court of Defense of the Competition for its resolution or The Commission shall, acting on its own initiative or at the request of any interested party, declare its expiry.
2. The Court shall make a decision and notify it within a maximum of 12 months from the date of admission to the file. The time limit shall be interrupted where there are incidental issues in which the Act provides for suspension, appeals are brought and the suspension is agreed by the competent court, the practice of proceedings is agreed to better provide by the Court of Justice of the Competition, a change of qualification in the terms of Article 43.1 of this Law or the suspension by the concurrency with a procedure before the Community organs or with the instruction of a criminal proceedings, as well as for the submission of a preliminary ruling to the Court of Justice of the European Communities. In this case too, the provisions of Article 42.5 of Law 30/1992, of 26 November, of the Legal Regime of Public Administrations and of the Common Administrative Procedure, will apply.
After 30 days after the expiry of the previous period, if the Court has not delivered a decision, it shall, on its own initiative or at the request of any interested party, declare the procedure to be revoked. "
Article thirty-third. Addition of a new Article 57.
A new article is added, 57 to Law 16/1989, of July 17, with the following content:
" Article 57. Fee for analysis and study of the concentration operations.
1. The fee for the analysis and study of the concentration operations, which shall be governed by the provisions of this Law and the other regulatory sources which are established in accordance with Article 9 of Law 8/1989 of 13 April, is hereby established. and Public Prices.
2. It is the taxable fact of the fee to carry out the analysis and study of any project or concentration of undertakings which are carried out in accordance with Article 14 of this Law.
3. The prior consultation provided for in Article 15 (5) of this Law shall not be subject to the fee.
4. Institutions which are obliged to notify the concentration shall be subject to the fees.
5. The accrual of the fee shall be the case where the taxable person submits the compulsory notification provided for in Article 15 of this Law, initiating the activity or the administrative file, which shall not be processed without the application of the payment.
6. The amount of the regulated rate in this precept shall be 500 000 pesetas or 3,005,06 euros when the total sales volume in Spain of the unit of the unit-holders in the concentration agreement is equal to or less than 40 billion pesetas or EUR 240,404,841,75, of EUR 1,000,000 or EUR 6,010,12, when it is equal to or less than EUR 80 000 million or EUR 480,809,683,51 and EUR 2 000 000 of pesetas or EUR 12,020 when the turnover is greater than 80 000 million pesetas or 480,809,683,51 euros.
7. The fee shall be paid in cash, in accordance with the terms of the rules in force in the area of collection.
8. The management of the charge shall be carried out by the Competition Defence Service in the terms laid down in the regulatory provisions laid down in the law, which may provide for the obligation for taxable persons to (a) to carry out tax self-settlement operations. '
Additional disposition first. Amendment of article 1.do.2.f) of the Law on the Liberalization of Telecommunications.
Article 1 (2) (f) of Law 12/1997, of 24 April, of Liberalization of Telecommunications, which happens to have the following wording:
" Adopt the necessary measures to safeguard the plurality of services offered, access to telecommunications networks by operators, interconnection of networks and network provision under open network conditions and the pricing and marketing policy by the operators of the services. For these purposes, the Commission shall perform the following tasks:
1. You may issue instructions to entities operating in the sector, which shall be binding once published in the "Official State
".2. The acts, agreements, practices or conduct of which may have news in the exercise of their privileges and which have indications of being contrary to the jurisdiction of the Competition Defense Service shall be in the knowledge of the Competition Defense Service. Law 16/1989, of 17 July, on the defence of competition. To this end, the Telecommunications Market Committee shall inform the Competition Defence Service of all the facts available to it and, where appropriate, shall send a non-binding opinion of the rating which it deserves.
3. To exercise the competence of the General Administration of the State to interpret the clauses of the enabling titles for the provision of telecommunications services that protect free competition in the market of telecommunications and the services referred to in paragraph 1 of paragraph 2 of this Article. '
Additional provision second. Amendment of article 1 (2) (g) of the Law on the Liberalization of Telecommunications.
Article 1 (2) (g) of Law 12/1997, of 24 April, of Liberalization of Telecommunications, which will be amended as follows:
(g) to exercise control over the processes of concentration of undertakings, shares in the capital and agreements between the players participating in the telecommunications market and the services to which they are refers to Article 1 (1) of this Article, in order to ensure, where appropriate, that the obligation to notify the Competition Defence Service is complied with in accordance with the terms laid down in Articles 14 and Law 16/1989 of 17 July of the Defence of Competition. '
Additional provision third. Article 16 of Law 3/1991, of 10 January, of Unfair Competition, which happens to have the following wording, is amended:
" Article 16. Discrimination and economic dependence.
1. The discriminatory treatment of the consumer in terms of prices and other conditions of sale shall be disloyal, unless it is justified.
2. The exploitation by an undertaking of the economic dependency situation in which its undertakings or suppliers which do not have an equivalent alternative for the exercise of their business may be found to be unfair. This situation will be presumed when a supplier, in addition to the usual discounts or conditions, must grant his client on a regular basis other additional advantages that are not granted to similar buyers.
3. You will also have the consideration of disloyal:
(a) The breach, even in part, of an established commercial relationship without prior written notice and a minimum of six months ' notice, unless it is due to serious breaches of the conditions or in case of force majeure.
b) The acquisition, under the threat of breakdown of the commercial relations, of prices, conditions of payment, modalities of sale, payment of additional charges and other conditions of commercial cooperation not included in the contract of supply to be agreed upon. "
Single repeal provision.
1. The provisions of this Law shall be repealed.
2. By way of derogation from the previous paragraph, Royal Decree 157/1992 of 21 February 1992, for the development of Law 16/1989 of 17 July 1989 on block exemptions, singular authorisation and the registration of the defence of competition and Royal Decree 1080/1992 of 11 September, on the procedure to be followed by the competition bodies in economic concentrations and form and content of their voluntary notification, will remain in force until the Government approves new regulatory texts adapted to this Law.
Single transient arrangement.
The antitrust procedures initiated prior to the entry into force of this Law will be dealt with and will be resolved in accordance with the provisions hitherto in force.
Final disposition first. Regulatory development of the Law.
1. The Government is hereby authorized to provide, within 18 months, the regulatory provisions governing the procedures for the defence of competition.
2. The Government is authorised to provide, within one year, the regulatory provisions for the development of the provisions of Article 57 of this Law on charges.
Final disposition second.
Before 1 October 2000, the Government will present in the Congress of Deputies a bill regulating the criteria for determining the determining connection of the attribution to the State and the Autonomous Communities of the powers, provided for in the legal framework for the defence of competition, relating to the knowledge and application of the State rules on prohibited and authorised conduct, in compliance with the judgment of the Constitutional Court of 11 November 1999.
Final disposition third. Entry into force.
This Law shall enter into force within three months of its full publication in the "Official Gazette of the State", with the exception of the provisions of Article 30, second, as regards Article 56 (1) of the Law 16/1989 of 17 July 1989, which will enter into force on 1 January 2001, and in respect of Article 56 (2) of the same Law, which has already been in force since 1 January 1998 under the transitional provision of Law 66/1997, Fiscal, administrative and social order measures.
Therefore, I command all Spaniards, individuals and authorities, to keep and keep this Law.
Madrid, December 28, 1999.
JOHN CARLOS R.
The President of the Government,
JOSÉ MARÍA AZNAR LÓPEZ