Spain's Audiencia Nacional, the court of appeal for
antitrust cases, has annulled the Spanish Competition
Commission's ("SCC") fine of €120 million
(US$160 million), the highest fines to date, imposed on eight
insurance companies allegedly involved in a price fixing cartel in
Spain. It is unusual for the SCC to be reversed on the merits
of its decisions.
In November 2009, the SCC ruled that insurers had fixed prices
on building insurance: Asefa, Caser, Mapfre Empresas, Mapfre
Re, Scor, Suiza Ibérica, Swiss Re, and
Múnchener. The SCC declared that the insurers had
fixed the pricing for insurance on inherent defects in new
buildings, through the use of price guides or manuals in insurance
policies, over the course of six years.
Three of the insurers – Caser, Scor and Múnchener
– appealed the SCC's ruling to the Audiencia Nacional,
which overruled the SCC's decision and revoked the previously
imposed fines. The High Court, through parallel proceedings,
concluded that there was insufficient evidence to prove that the
insurers engaged in anticompetitive
In Caser's appeal, the Court determined that, even if the
insurer had acknowledged the potential anticompetitive nature of
the conduct, under the circumstances the same conduct could have
been interpreted as legally exempt. The Court also concluded
that the insurer did not participate in the alleged unlawful
agreements, but only monitored the implementation of the
agreements, which the insurer was free to do.
In the Scor and Múnchener appeals, the High Court
determined that there was insufficient evidence to demonstrate the
anticompetitive effects of the alleged conduct. In Scor's
appeal, the High Court concluded that the SCC had failed to satisfy
its burden of proof that the differences in price (fees, tariffs,
recharges, and discounts) were the result of the alleged unlawful
agreements, as opposed to conditions in the insurance industry,
including the effects of the real estate boom that took place in
Spain or as a result of the regulations on insurance markets, which
created barriers to entry. While the insurers demonstrated
justifications for price increases, the SCC merely assumed that any
price increases were the result of an unlawful agreement.
Similarly, in Múnchener's appeal, the High Court
acknowledged that certain particularities in the insurance markets
make it necessary to exchange risk information with
competitors. The High Court also recognized that there were
notable differences between the conditions applied by the various
insurers. As a result, the High Court concluded that the
insurers' conduct was not unlawful.
Aside from the substantial amount of fines at issue, the High
Court's annulment of the SCC's decision is noteworthy
because it represents a significant defeat for the SCC.
Although the High Court has overruled decisions of the SCC in the
past, prior decisions were overruled on procedural grounds or the
lack of proportionality of the fine to the alleged
misconduct. The fact that the High Court here has overruled
the SCC for lack of sufficient evidence is rather
The SCC has announced that it will appeal the High Court's
December 2012 decision to the Supreme Court of Spain.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The competition law enforcement in Turkey is based on private and public enforcement pillars. TCA has sole discretion to enforce the Competition Act whereas the litigations initiated by the victims of anti-competitive conduct are seen in private courts.
Daiichi Sankyo İlaç Ticaret Ltd. Şti. ("Daiichi"), a globally active company in the distribution, sale, marketing and importation of pharmaceutical products, and Aksel Ecza Deposu A.Ş. ("Aksel"), a drug wholesaler, entered into a vertical exclusivity agreement ("Agreement").
The Competition Board concluded its investigation with regard to the booking services provided by Booking.com B.V. and by Bookingdotcom Destek Hizmetleri LLC, operating as the Turkish representative of Booking.com.
For the past few years, Turkey has tended to use various trade remedy tools more frequently, thus the number of investigations increases in depth and breadth with the aim of supporting domestic industry...
The CAT in the UK heard on 17 January 2017 an application by Flynn Pharma Ltd and Flynn Pharma (Holdings) Ltd to suspend the Competition and Markets Authority's direction to reduce the price of an epilepsy drug.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).