Administrative/Corporate Updates 1-2013

On June 5, 2013, the Official State Gazette published Law 3/2013, of June 4, 2013, creating the National Markets and Antitrust Commission. The Law entered into force on the following day.

The new Law 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 Antitrust 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 a 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 law 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.

The creation of the CNMC stems from a critical review of what the Preamble to the Law calls “the proliferation of bodies with supervisory powers,” a situation in practice that can undermine legal certainty and institutional confidence. The new approach should allow economies of scale to be harnessed and an integrated view to be promoted, in line with the trends observed in some neighboring countries. At the same time, the Law reviews the powers attributed to the newly-integrated authorities, removing those that do not require the involvement of an independent authority and transferring them to the relevant Ministries in each area.

Throughout its passage through parliament, the Bill that is now on the statute books was met with heavy criticism from different quarters, not least in the reports issued by the soon-to-be-integrated authorities, which were generally against the reform. The media also echoed various warnings issued by the European institutions. Observations received from Brussels gave rise to the presentation of a significant number of amendments to the Bill in April, and their acceptance by parliament has enabled the rapid enactment of the Law.

1. KEY ELEMENTS OF THE LAW

1.1 Nature and Legal Regime

1.2 Functions

1.3 Organization and Functioning

1.4 Rules of Conduct and Powers

1.5 Transparency and responsibility

2. TRANSITIONAL PERIODS