29 January 2015

CNMC fines 39 undertakings and 3 associations €98.2 million

On 26 January 2015, the Spanish Competition Authority (CNMC) announced the adoption of a decision (in case S/0429/12 Residuos) fining 39 undertakings and 3 trade associations in the Spanish waste-management sector.

The investigation commenced after the now-extinct National Competition Authority received confidential information. This resulted in dawn raids that took place on 24 and 25 July 2012 at the premises of Fidotec, SL, Cespa Compañia Española de Servicios Publicos Auxiliares SA and Cespa Gestion de Residuos SA, on 6 and 7 March 2013 at the premises of FCC Medio Ambiente SA and FCC Ambito SA, Urbaser SA, Sertego Servicios Medioambientales SLU, Sociedad Anonima Industrias Celulosa Aragonesa, Saica Natur SL, Hera Holding Hábitat, Ecologia y Restauración Ambiental SL, Hera Tratesa SA and Verinsur SA and on 2 July 2013 at the premises of the association Asociacion de Empresas de Limpieza Publica (ASELIP).

Having reviewed the documentation from the raids, the CNMC had serious doubts as to the lawfulness of several of the practices under Article 1 of Spanish Competition Act 15/2007.  It therefore decided on 4 July 2013 to commence infringement proceedings against 38 undertakings and the aforementioned association ASELIP.  On 13 March 2014, the CNMC extended the scope and added a further 18 companies to the proceedings.

The inquiry focused on three different aspects of the waste-management system, the management of industrial waste, the recovery of paper and board and urban sanitation. With regard to the management of industrial waste, the CNMC found out that the companies involved had agreed to share the market between 1999 and 2013, including through non-aggression pacts. Regarding the recovery of paper and board, several non-aggression pacts as well as agreements on price and commercial terms where discovered, which implied the distortion of bidding procedures. Finally, concerning urban sanitation, the CNMC found out that the targeted companies had agreed, through the association ASELIP, to influence public tenders including boycotting certain public procurement procedures which did not fit their interests.

Therefore, the CNMC considers that these 39 undertakings and 3 associations engaged in a single continuous infringement of Article 1 of the Spanish Competition Act 15/2007 in several regions of Spain and imposed fines totalling €98.2 million.  The CNMC imposed the majority of the fines on the following groups:

  1. Urbaser SA and Sertego Servicios Medioambientales SLU (ACS group): €23,289,036
  2. Fomento de Construcciones y Contratas SA, FCC Ambito SA, FCC Medio Ambiente SA, Manipulación y Recuperación Marepa SA, Recuperación de Pedreres SL and Tratamiento y Recuperaciones Industriales SA (FCC group): €16,880,054
  3. Valoriza Servicios Medioambientales, SA (Sacyr group): €15,295,022
  4. Cespa, Compañia Española de Servicios Publicos Auxiliares, SA and Cespa Gestion de Residuos SA (Ferrovial group): €13,616,717
  5. Sociedad Anónima Industrias de Celulosa Aragonesa, Saica Natur SL, Saica Natur Noreste SL and Saica Natur Norte SL (Saica group): €5,370,000

It is important to note that there was one dissenting vote disagreeing, amongst other things, with the way the fines were calculated and even suggested the proceedings should lapse.  Nonetheless, the Competition chamber is composed of five members and its decisions are taken by simple majority.

Finally, it is essential to recall 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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