23 July 2015

CNMC fines 12 undertakings €8.8 million for cartel agreements in refrigerated road transport market

On 22 July 2015, the Spanish Competition Authority (CNMC) announced a decision to fine 12 operators (together with an association of undertakings) in the refrigerated road transport sector.

This decision follows an inquiry that began as a result of several emails received by the CNMC from October 2011 to October 2012 alerting the watchdog to the possible existence of anti-competitive conduct in the sector, leading them to commence formal infringement proceedings in the market. The CNMC considers that the companies in question incurred a breach of Article 1 of the Spanish Competition Act 15/2007 and Article 1 TFEU as a result of conduct amounting to price fixing between 1993 and 2012. In addition, the companies that have been fined attempted to create a franchise company in order to hide the anticompetitive conduct of establishing commonly agreed prices.

In order to determine the amount of the fine, the CNMC applied the Spanish Competition Act, which establishes that a penalty of up to 10% of the turnover in the previous financial year may be imposed, as interpreted by the Spanish Supreme Court's landmark judgment. The case establishes that the criteria set out in the Spanish Competition Act for calculating fines (0-1% for minor offences, 1-5% for serious offences and 5-10% for very serious offences) should be counted out as a scale when calculating the fine and not as a maximum cap once the fine has already been calculated. Therefore, the CNMC applied different percentages to the turnover ranging from 1% to 3.95% to calculate the fine. As a result, companies such as Disfrimur S.L (Disfrimur Group) received a fine of €2.6 million and Transportes Mazo Hermanos S.A. €2 million, whereas other undertakings such as Campillo Palmera S.L. received €1.47 million.

The decision taken by the CNMC cannot be challenged via an administrative review. However, the fined companies may challenge the decision within two months of receiving notification of the resolution before the Audiencia Nacional, the judicial body in charge of reviewing administrative decisions issued by the CNMC.

Importantly, it should be noted that any person or company that has suffered adverse effects from the anti-competitive practices is entitled to seek loss and damage before the Spanish civil courts.

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