On 22 December 2017, the Spanish High Court (Audiencia Nacional) delivered a judgment annulling a 2015 decision adopted by the Spanish Competition Authority ("CNMC") against REPSOL S.A. In its 2015 decision, the CNMC imposed a fine of € 20 million on REPSOL for anticompetitive practices on the market for the distribution of automotive fuel, which included price coordination, the exchange of strategic price information and the conclusion of non-aggression price pacts with some of its competitors in relation to certain of their associated petrol stations.
In its decision, the CNMC found that the anticompetitive conduct was carried out by a distribution subsidiary of the REPSOL group. However, the CNMC adopted the decision solely against REPSOL S.A., and not against its fully-owned subsidiary, which was actually involved in the infringement. The CNMC based its decision on the presumption that REPSOL S.A. exercised decisive influence over the subsidiary during the relevant time, based solely on the fact that it owned 100% of the subsidiary's shares.
On appeal, REPSOL S.A. did not contest the anticompetitive nature of the conduct of its subsidiary, but claimed that the fundamental principle of personal responsibility had been infringed because the CNMC had not addressed its decision to REPSOL S.A.'s subsidiary and because REPSOL S.A. was held solely liable for the infringement committed by its subsidiary. In addition, REPSOL S.A. argued that it was not active on the affected market and merely provided centralised services to the subsidiaries of the REPSOL group.
The High Court recalled its judgment of July 2017 in a similar case, in which REPSOL S.A. had been fined for the conduct of its 99.78%-owned subsidiary, even though only the subsidiary had participated in the infringement and was active on the affected market (see VBB on Competition Law, Volume 2017, No. 8, available at www.vbb.com). The High Court agreed with REPSOL S.A. and clarified that, under Spanish law, liability for a competition law infringement can be attributed to the following entities: (i) to the company that actually committed the infringement; or (ii) to the company that committed the infringement and its parent company where the latter exercised actual and decisive influence over the former during the relevant period.
Since the CNMC had held REPSOL S.A. solely responsible for the payment of the fine arising from an infringement attributed to its subsidiary over which it exercised actual and decisive influence, rather than considering REPSOL S.A and its subsidiary jointly liable for such conduct, the Court annulled the CNMC's decision.
The CNMC has announced its intention to appeal against the ruling.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.