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.
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It is a common practice that companies become familiar with competition law and aware that they are violating competition rules only once they are faced with the investigation and fines imposed on them by the Competition Authorities for the breach of those rules.
Amendments to the FCA Handbook SUP 15 now mean that a regulated firm is now under the express obligation to notify the regulator if it "has or may have committed a significant infringement of any applicable competition law".