The final steps to introduce a leniency programme in Spain were adopted on Wednesday 27th February 2008.

Even though the possibility of such a programme was explicitly included in the new Competition Act enacted last year (Law 15/2007, of 3 July, on Competition Protection —the "LDC"—), its practical application was postponed until an implementing regulation entered into force. Such an implementing regulation was approved on Friday 22nd February 2008 and adopted on Wednesday 27th February 2008.

The Spanish system follows the main lines of the successful European Community's leniency programme, which dozens of companies have invoked since 1996, and which has resulted in the imposition of fines on dozens of major companies adding up to more than 2.5 billion euros approved on Friday 22nd February 2008 and published on Wednesday 27th February 2008.

In line with the European Commission's policy on this subject, articles 65 and 66 LDC state that the National Competition Commission (the "CNC") may grant immunity from fines or reduce the fine for companies that, although forming part of a cartel, report it to the CNC, while submitting substantial evidence and cooperating in full with the investigation.

In order to provide companies with some procedural guidance on this new program, the CNC (National Competition Commission) has published provisional guidelines on processing requests for leniency. These provisional guidelines also contain a standard model for leniency applications. Some of its most noteworthy aspects are as follows:

  • A special Cartels and Leniency Unit has been set up within the CNC to deal more effectively with these cases.
  • Following the European Community's model, only the first whistleblower to report the cartel, meeting all the requirements for this, may opt for total exemption from the fine. The next members of the cartel to report it will only be able to obtain a reduction of between 20% and 50% of the fine.
  • It rules out the possibility of accepting requests for leniency after the Statement of Objections, although it is still possible to submit requests for a reduction.
  • The information to be provided is quite exhaustive. This could be a problem because although, as with the European Commission, it is possible to submit a brief request that has to be completed later on, the Spanish procedure seems to be somewhat stricter. It states that this is a possibility of an exceptional nature and is only possible after a justified request.
  • Although it is possible to submit verbal statements, the CNC is not obliged to accept this form of giving evidence.

Even though some commentators have raised doubts as to whether Spanish companies will want to become whistleblowers, others have pointed out that the important presence of multinational companies accustomed to the EU and US leniency programmes could generate enough of a 'prisoners dilemma' to ensure that the success of such programmes also extends to the new the Spanish one.

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