Spain

Spain’s main merger control legislation is Law 15/2007 on the Defence of Competition, together with the implementing Regulation set out in Royal Decree 261/2008 (the “implementing Regulation”). Spanish competition law is significantly influenced by EU competition law and practice, and the European Commission’s guidelines and notices are generally applicable.

The Spanish regime is mandatory and subject to a standstill obligation.

The Comisión Nacional de los Mercados y la Competencia (CNMC) is the authority responsible for investigating and deciding merger control cases. While it is independent from the government, the latter may exceptionally intervene, following a Phase II conditional clearance or prohibition, on grounds other than competition.

The regime applies across all sectors.

Spain is part of the EU merger control framework.

The CNMC can seek and receive comments from other domestic authorities, such as the regional competition authorities and certain sectoral bodies (e.g. in banking and insurance-related transactions).

Not at this stage.

In Spain, the trigger for merger control is a change of control, interpreted consistently with the EU Merger Regulation (EUMR).

Only changes of control on a lasting basis are caught, in line with the concept established under the EUMR.

The following transactions are caught:

• mergers;
• acquisitions of shares (whether 100% or a lower percentage) conferring control;
• asset acquisitions; and
• the formation of joint ventures (as discussed in Section 2.4, below).

No distinction is drawn between the acquisition of bare assets and the acquisition of a business or “going concern”. Acqui-hires have not been assessed to date. Transactions not ordinarily characterised as concentrations — such as the acquisition of options, warrants and convertible debt structures — are generally not caught.

The formation or acquisition of joint ventures is subject to merger control under principles equivalent to those of the EUMR. Particular attention should be paid to the EUMR’s specific rules for calculating turnover, as these may directly affect whether the relevant thresholds are met.

Interrelated transactions are treated as a single concentration under principles equivalent to those set out in the EUMR. Transactions between the same parties acting as buyer and seller that take place within a two-year period are considered one transaction.

Merger control applies where at least one of the following thresholds is met:

• Market share threshold. The transaction results in the acquisition or increase of a market share equal to or exceeding 30% of the relevant product or service market in Spain or a defined geographic market within it. However, transactions meeting this threshold are exempt if the acquired company’s or assets’ turnover in Spain did not exceed EUR 10 million in the last financial year, provided that no party holds an individual or combined share of 50% or more in any affected market (e.g. vertically related markets) in Spain or a defined geographic market within it.
• Turnover threshold. The combined aggregate turnover in Spain of all parties exceeded EUR 240 million in the last financial year, provided that at least two of the parties each individually achieved turnover in Spain exceeding EUR 60 million.

The turnover-based threshold is calculated as follows:

• The relevant turnover is the amount reflected in the most recent audited accounts. Adjustments may be necessary to reflect divestments or acquisitions that took place after the date of those accounts.
• The turnover of the acquiring parties and the target is taken into account.
• The concept of group is determined on the basis of the control criterion.
• In a joint venture transaction, intra-group turnover between the joint venture and its parent companies is excluded, while turnover generated with third parties is included and allocated equally amongst the participating undertakings.
• From a geographical perspective, Spanish turnover refers to products sold and services provided to companies and consumers in Spain.
• Specific rules for calculating turnover for banking, insurance and investment funds are set out in the implementing Regulation, in line with the approach adopted under the

No specific criteria apply.

Average European Central Bank conversion rates should be used for the period covered by the annual accounts.

Market shares are calculated in accordance with the market definition set out in Spanish or EU precedents, if available. From a geographical standpoint, the relevant market definition encompasses Spain — even where precedents have considered broader markets — and, in some cases, narrower markets. The relevant period is the most recent year for which data are available.

Regarding the market share threshold, at least the target must be present in the Spanish market for a filing obligation to arise, because the transaction must result in the relevant threshold (30% or 50%) being reached or exceeded. The threshold will be triggered where the target alone — without any overlap with the acquirer — meets it, or where the combined shares of the target and the acquirer(s) reach or exceed it. By contrast, the threshold will not be triggered where only the acquirer(s) meet it in the absence of any sales by the target in Spain.

Since the turnover threshold requires that at least two parties have Spanish turnover, the obligation to notify will not be triggered if the target is not present in Spain, provided that the transaction results in the acquisition of sole control. However, if the transaction results in a joint control situation, the threshold can be triggered by the parent companies alone, despite the target not being present in Spain.

No.

The CNMC tracks transactions that should have been filed, often imposing fines in cases of gun jumping. The CNMC has also ruled that the acquirer does not meet its burden of determining whether a filing is required merely by relying on the information received from the target (indicating, for example, that the market share threshold was not met). The acquirer must carry out its own assessment and, in case of doubt, consult the CNMC.

No.

The possibility of fines being imposed in the case of gun jumping is time-barred after two years from closing.

A filing ad cautelam is possible and is used in some cases where the market definition is unclear. The parties may also submit a formal consultation to the CNMC.

Notification is mandatory and cannot be waived.

There is a standstill obligation, meaning that clearance must be received before closing, on terms comparable to the EUMR. If the merger has already been completed, the CNMC may require that a filing be made (with fines being imposed if not time-barred), and may require commitments, impose conditions, or even prohibit the transaction.

A waiver of the standstill obligation may be requested, but it may be granted only in exceptional circumstances, such as the target’s bankruptcy.

Only the acquirer(s) is required to submit a notification.

A filing fee is payable by the notifying party(ies). The applicable amounts for ordinary filings are set out in the Annex to Law 3/2013, establishing the CNMC, while the fee for simplified filings is set at EUR 1,576.51 by Law 22/2021 on the General State Budget for 2022. Formal notification will not be accepted until the fee has been paid. The filing fees may be revised at the beginning of each calendar year.

A notification may be made once the parties have contractually consented to the transaction and have determined the form, time and terms of the transaction. Pre-filing contacts may begin before signing.

There is no filing deadline, provided that no closing takes place in respect of transactions requiring mandatory notification until clearance has been obtained.

There is the pro forma notification (www.boe.es/buscar/act.php?id=BOE-A-2008-3646&p=20210428&tn=1#anii) and the simplified (www.boe.es/buscar/act.php?id=BOE-A-2008-3646&p=20210428&tn=1#aniii) notification. The main categories of information required by the form include:

• details of the notifying and other participating parties;
• the nature, characteristics and financial dimensions of the transaction, including turnover figures and the economic rationale;
• ancillary restraints;
• pre-existing ownership and control structures;
• market definition, covering both product and geographic markets, as well as the identification of affected and other potentially impacted markets;
• market information, including market shares, supply and demand structure, barriers to entry, R&D activities, cooperative arrangements and vertical aspects;
• efficiencies and broader competitive context; and
• supporting documents, including annual accounts, transaction documents, and any reports or analyses prepared in connection with the transaction. Documents such as presentations prepared for the acquirer in relation to the transaction should be disclosed as part of the notification.

Copies of documents concerning the sale and purchase agreement and the power of attorney must be submitted in their original version and, if not drafted in Spanish, must be accompanied by a Spanish translation. In practice, no specific formalities are required. Filing is done electronically.

A simplified procedure may be used where at least one of the following conditions is met:

• None of the parties operates in the same product or geographic market, or in related upstream or downstream markets, in which any other party is active.
• Even if overlaps exist, the parties’ market shares are too limited to significantly affect competition. This is the case where:
  • the parties’ combined share does not exceed 15% in the same product or service market in Spain or a defined geographic market within it or, where the combined share exceeds 15% but remains below 30%, the increment in market share does not exceed 2%; and
  • no party holds an individual or combined share of 25% or more in a vertically related product market in Spain or a defined geographic market within it.
• A party acquires sole control of an entity over which it already held joint control.
• The transaction concerns a joint venture that does not carry out, and does not intend to carry out, any activities in Spain, or its activities there are marginal (i.e. the joint venture’s turnover in Spain does not, or is not expected to, exceed EUR 6 million).

The CNMC may nonetheless require the ordinary notification form where it deems this necessary for an adequate investigation of potential competition concerns.

Pre-notification is essential in practice, and discussions with the CNMC typically commence with the submission of a draft notification, or even earlier in particularly complex cases. They may range from two weeks to several months, depending on the complexity of the case. In simplified procedure cases, pre-notification is required in order to benefit from the shorter statutory deadline (as discussed in Section 4.12, below).

Merger review deadlines are as follows:

Phase I. One calendar month, which may be shortened to 15 working days in a simplified procedure; and

Phase II. Three calendar months from opening. The deadlines may be suspended in the event of requests for information or market tests and extended by 10 working days in Phase I and 15 working days in Phase II if commitments are offered.

The exceptional intervention of the Council of Ministers (commonly known as Phase III) comprises 15 working days for the Minister of Economy to request its initiation, plus one calendar month for the government to adopt a decision.

If a statutory deadline lapses without action, the transaction is deemed cleared.

Official holidays and non-working days are not taken into consideration when calculating deadlines expressed in working days, including deadlines granted to parties to reply to requests for information. However, they do count for deadlines calculated month by month.

In any case, certain holiday periods may affect the practical timing of decisions, particularly Christmas, Easter and August.

In the simplest cases, preparing the filing may take a couple of weeks, followed by a pre-notification period of similar duration, with clearance being granted in under 15 working days (approximately two months in total). In standard cases, this timeline may double and it can be significantly longer in complex cases.

In a public tender offer relating to securities traded on the Spanish stock exchanges, the notifying party must formally submit the merger filing to the CNMC within five working days of the date on which the Spanish Securities Commission (CNMV) authorises the tender offer. In contested public tenders, the offeror may make a filing based on its best estimate of the target’s data (i.e. without direct involvement from the target).

Third parties may be invited by the CNMC to submit comments on the transaction in the context of a market test, including in relation to remedies. Subject to the CNMC’s approval, in Phase II third parties may intervene as interested parties to gain further insight into the procedure. Informally, third parties may always submit their views. It is also common for complainants to bring a non-notified merger to the attention of the CNMC.

The agency has wide powers to obtain information, including the power to compel disclosure of internal documents. It has not been common practice for the CNMC to require extensive document disclosure. Information requests are typically made on a formal basis, so they suspend the deadlines.

The parties must request confidential treatment for sensitive information submitted to the CNMC if they wish to prevent its disclosure to third parties or the public. The CNMC will provide the notifying party with an opportunity to review the decisions for confidential information prior to publication.

The CNMC will assess the horizontal, vertical and conglomerate competitive effects of the transaction, applying the same substantive assessment framework as the European Commission under the EUMR.

After a Phase II prohibition or remedies decision, the government may review the decision in light of public interest criteria other than competition, for example, national security, environmental protection. This review, commonly known as Phase III, is extraordinary and has only been conducted in two cases since the enactment of the law in 2007. Following such review, the government may amend the remedies approved by the CNMC or approve a transaction that has been prohibited.

The CNMC may consider countervailing efficiencies or benefits, although examples of this in practice are extremely rare.

The authority’s preliminary thinking is not formally shared in writing, although concerns may be voiced in some instances at a meeting. If the transaction progresses to Phase II, parties will receive a brief statement of concerns in the opening decision, and a detailed explanation of those concerns in a statement of objections (SO). The notifying party can also request access to the file and an oral hearing after the SO. Once the SO has been notified, the parties can request access to the file and have 10 working days (which can normally be extended by a further five working days) to reply. The parties may make written submissions at any time (e.g. after the Phase II opening decision).

Remedies may be considered at each phase of the process, including during pre-notification. Although there is a formal deadline for proposing remedies (20 working days from filing in Phase I; 35 working days from the opening of Phase II), the CNMC applies these deadlines flexibly in practice.

The CNMC may impose unilateral remedies not proposed by the parties (conditions) or, if no feasible conditions are available, prohibit the transaction.

The CNMC accepts both structural and behavioural remedies (such as price or quality maintenance, restrictions on entering into distribution agreements with certain operators, mandatory investments, the obligation to continue supplying a third party, and obligations to maintain production levels). In theory, the CNMC could order or seek the divestiture of a business in a completed merger involving gun jumping. However, this has not occurred to date.

Subject to the terms of the remedies or conditions, completion of a merger may take place before remedies or conditions have been complied with. Compliance is rarely ensured by means of a trustee appointment, but rather through periodic reporting obligations, in the context of which third parties may also be consulted and heard.

The decision is communicated to the acquiring party(ies) and published in a non-confidential version on the CNMC’s website.

Phase I clearance decisions take effect immediately. Phase II clearance decisions come into effect after 15 working days or upon conclusion of the government’s review (Phase III).

Ancillary restraints are covered by the merger clearance decisions, although the CNMC has recently stopped performing individualised analyses of those restrictions in clearance decisions (in line with EC practice).

Decisions may be appealed before the Audiencia Nacional (Administrative National Court), and then to the Spanish Supreme Court on appeal, on any legal grounds. The time limit to formally lodge an appeal is two calendar months from notification of the decision, following which the court will invite the appellant to substantiate the appeal with detailed arguments. A suspension of the implementation of the decision may also be sought, although it has never been granted. Decisions of the Council of Ministers in Phase III proceedings are directly appealable before the Supreme Court.

Failure to notify or late notification of a notifiable merger may result in fines of up to 5% of the worldwide turnover of the parties involved, although enforcement practice has evolved significantly over time. Fines are always imposed on the acquirer and have ranged from EUR 39,000 to a high of EUR 1.5 million. Individuals have never been fined for gun-jumping offences. Fines are imposed on the acquirer even where it is a foreign entity, although questions have been raised as to the practical enforcement of such fines in Spain. Finally, failure to notify a notifiable merger could in principle lead to a declaration of nullity of the transaction if the transaction raises issues, although this has never occurred to date.

Sanctions are frequently imposed for early implementation (i.e. gun-jumping), and the CNMC actively monitors the market in this regard. Pre-closing integration planning is permitted, provided that the necessary precautionary measures are observed, in particular by ensuring that information exchanges are channelled through clean teams.

Sanctions may be imposed in such circumstances. There have been cases in which fines were imposed because certain relevant markets were reported while others were omitted. The acquirer(s), as notifying party(ies), will typically be the target of such sanctions, although third parties that fail to respond to information requests or that provide misleading or incomplete information may also be subject to administrative penalties. Individuals are not fined in these scenarios, although, theoretically, they may also be held responsible.