Act 3/2013 creating the National Markets and Competition Commission

The Act makes sweeping changes to the current system of regulatory supervision by creating a new body, the National Markets and Antitrust Commission (CNMC), which encompasses the existing National Competition Commission and the majority of industry supervisory authorities, namely, the National Energy Commission, the Telecommunications Market Commission, the Rail Regulation Committee, the Airport Economic Regulation Commission and the National Postal Industry Commission. The Law also abandons the plan to set up a future National Gaming Commission and the State Council for Audiovisual Media. However, financial supervisory authorities (National Securities Market Commission, Bank of Spain) and the Nuclear Safety Council are not included within the scope of application of the Law and therefore remain as separate bodies.

The Law merely sets out the new institutional structure, leaving the legislative content in the areas of antitrust and compliance largely untouched. In particular, the definitions of prohibited conduct, the system for control of concentrations and the rules on monitoring State aid remain unchanged as do the specific rules in the different regulated sectors.

Specifically, with respect to competition, the new Law attributes practically all of the functions entrusted to the National Competition Commission under the Competition Act 15/2007, of July 3, 2007 (“LDC”) to the CNMC.

With regard to electronic communications, the Act confers the powers of the former Telecommunications Market Commission on the CNMC, without attributing any new functions in this area to the Ministry of Industry, Energy and Tourism, with the exception of the collection of certain taxes. However, in the audiovisual field, the Act confers on said Ministry some activities for which the State Council for Audiovisual Media was competent, which the Telecommunications Market Commission was provisionally entertaining, such as collecting the communications of initiation of activity or carrying the Registry of providers of audiovisual services.

In energy matters, the Act also transfers the functions of inspection, initiation and conduct of certain enforcement/penalty proceedings, responding to claims made by consumers and informing consumers of their rights and dispute resolution methods, settlement of regulated activities and supervision of the work done by the Office for Switching Energy Supplier to the Ministry of Industry, Energy and Tourism. The Ministry also retains the power to examine the taking up of stakes in the energy industry, without prejudice to the CNMC’s scrutiny of concentrations.

In relation to the postal industry, the Law attributes the functions formerly discharged by the National Postal Industry Commission to the CNMC on the terms established by the industry legislation.

Lastly, as regards transportation, the CNMC inherits functions in the areas of supervision of the procedure for transparency and consultation of modification or review of airport charges by AENA (the Spanish airports authority), previously carried out by the Airport Economic Regulation Commission, as well as the functions falling to the Rail Regulation Committee and envisaged in Law 39/2003, of November 17, 2003.

The creation of the Commission will mean the demise of the regulatory bodies that have been discharging antitrust functions to date in the different industries and markets, although these bodies will continue to discharge such functions on a transitional basis until the new CNMC is up and running. With respect to the functions to be transferred to the relevant Ministries, the CNMC will perform these functions on a transitional basis until such time as the ministerial departments have the necessary resources to actually take on such functions.