Competition Compliance In Spain: New CNMC Guidance Turns Programs Into A Tool For Fine Mitigation And Public Tender Protection

In Short

The Situation: The Spanish National Markets and Competition Commission ("CNMC") has published its "Guidance on compliance programs in relation to the defense of competition" (the "Updated Guidance"), which updates the guidance first adopted in 2020 (the "2020 Guidance"). The Updated Guidance seeks to further encourage companies to integrate competition law into corporate compliance frameworks while providing transparency on the criteria for evaluating the effectiveness of compliance programs in the context of competition law enforcement proceedings.

The Result: The Updated Guidance introduces clarifications that materially affect how companies should use competition compliance programs in Spanish enforcement proceedings. In particular, it distinguishes more clearly between fine mitigation and exemption from, or lifting of, debarment from public procurement; incorporates CNMC Communication 1/2023, recent Spanish Supreme Court case law, and the Spanish Whistleblower