25 September 2015

Spanish courts initiate proceedings against petrol operators for price fixing

The Spanish Audiencia Nacional (AN), a special high court in charge of reviewing the legality of certain administrative decisions (including those of the Spanish Competition Authority (CNMC)), serious crimes and other affairs of national relevance, has opened judicial proceedings against the five main petrol operators in Spain.

A trade union and a consumer group have filed two separate criminal actions against Cepsa, Repsol, Galp Meroil and Disa and their respective executives on the basis of evidence gathered by the CNMC, which imposed a €32.4 million fine upon these companies in February 2015 for entering into horizontal anti-competitive agreements The claimants, supported by the Public Prosecutor, argue that, aside from the administrative fining procedure, the evidence also shows that a crime was committed under the Spanish Criminal Code.

Together Cepsa, Repsol, Galp, Meroil and Disa control 75% of the Spanish petrol market, as well as 68% of the petrol stations located in the country. These companies therefore have a large impact on market forces. According to the judge overseeing this case, the alleged crime of machination or contrivance could have resulted in the serious disruption of the national economy and harmed many consumers.

As these are criminal law proceedings which were initiated on the basis of evidence gathered during a CNMC inquiry, the executives in question face a possible prison sentence under the Spanish Criminal Code. Indeed, the Public Prosecutor, who supports the grievances filed by the complainants, considers that the companies’ and their executives’ anti-competitive conduct may be a crime under article 284 of the Spanish Criminal Code which states:

A prison sentence of six months to two years or a fine at a daily rate as determined by the judge for a period of twelve to twenty-four months shall be imposed upon those who: using violence, intimidation or deceit attempt to alter the prices that would arise from free competition of products, merchandise, securities or financial instruments, services or any other moveable assets or real estate that is subject to contract, without prejudice to the punishment that may be imposed on them for other crimes.”

Repsol and Disa’s CEOs, Cepsa’s President and Meroil’s Executive President could all be called before the judge as accused parties in these proceedings. However, it should be noted that where individuals are handed a prison sentence of less than two years and they do not have a criminal record to date, this sentence will typically be suspended.

The initiation of criminal proceedings against the petrol giants for breaches of competition law shows that in Spain, both the local and national competition authorities and the state institutions are committed to the enforcement of competition law.

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