Answer ... If a transaction meets the relevant thresholds, notification in advance of its execution or completion is mandatory without exception. In such cases, clearance from the Spanish Competition Authority (CNMC) must be obtained (expressly or tacitly) before implementing the transaction, unless the CNMC agrees to waive this standstill obligation (see question 3.8).

Answer ... The CNMC has a formal consultation procedure through which undertakings can seek advice in order to clarify whether the proposed transaction constitutes a concentration and/or exceeds the notification thresholds.

Moreover, undertakings can obtain informal guidance from either a jurisdictional or a substantive perspective before notification by submitting a draft notification form to the CNMC.

Although it is not mandatory, in practice, pre-notification is usually advisable, as it usually helps to speed up the process. In that regard, the CNMC will review the draft notification form and confirm whether the information included in the draft form is sufficient or whether additional information is needed, reducing the likelihood that the CNMC will stop the clock by formally requesting further information from the parties once the notification has been officially filed.

Answer ... The party acquiring sole control over an undertaking or part thereof will be responsible for filing.

In case of the acquisition of joint control over one or more companies or a part thereof (through a merger, the creation of a joint venture or any other way of acquiring joint control), the parties acquiring joint control as a result of the transaction will be jointly responsible for filing.

The undertakings responsible for filing the notification can do this by themselves or through a representative duly empowered.

Answer ... Yes, the notifying parties should pay a filing fee.

Currently, the Annex to Law 3/2013 on the creation of the CNMC sets forth the following fees (which may change from time to time):

• Concentrations that qualify for a short form notification (see question 4.2) must pay a filing fee of €1,545.45.
• Otherwise, the filing fees are as follows:
• • €5,502.15 if the aggregate turnover in Spain of the undertakings concerned is equal to or less than €240 million;
  • €11,004.31 if the aggregate turnover in Spain of the undertakings concerned exceeds €240 million, but is less than or equal to €480 million;
  • €22,008.62 if the aggregate turnover in Spain of the undertakings concerned exceeds €480 million, but is less than or equal to €3 billion; or
  • a fixed fee of €43,944 if the aggregate turnover in Spain of the undertakings concerned exceeds €3 billion, plus an additional €11,004.31 for every €3 billion by which said turnover exceeds the foregoing amount, up to a maximum limit of €109,806.

Answer ... The notification must be made using the official forms (standard or short form; see question 4.3), both of which are attached as annexes to the Regulation on the Defence of Competition.

Under the standard form, the notifying parties must provide the following information (if the transaction should be notified under the short form, less information is needed):

• information on the parties;
• a description of the transaction;
• potential ancillary restraints;
• a description of the previous control structure of the notifying party and the target;
• definitions of the relevant product and geographic markets concerned by the concentration;
• information on the structure of the relevant markets, such as market share estimates, details on offer and demand structures, barriers to entry, R&D expenditure and whether any cooperative or vertical issues arise from the transaction; and
• information on the contribution of the transaction to different kind of efficiencies.

In addition to the official form, the notifying party must submit other relevant documents, such as:

• the financial statements of the parties to the transaction and their parent companies for the last audited financial year;
• the agreements giving rise to the transaction (translated into Spanish);
• analysis, reports or studies that are considered relevant;
• cooperation agreements or other ancillary agreements;
• the power of attorney (if the notification is submitted through a representative);
• evidence of payment of the filing fee; and
• reports or documents prepared by or requested from third parties for the management body, shareholders, investors or analysts of the undertakings concerned.

In case of a lack of information or documents, the CNMC may require the notifying parties to correct such deficiencies within 10 days; if they fail to do so, the CNMC shall consider that the notifying parties have desisted from the notification.

Answer ... There is no specific deadline for filing the notification. However, an economic concentration that meets the applicable thresholds must be notified prior to implementation.

There is an exception regarding notifications for public takeover bids relating to securities listed on the stock exchange markets authorised by the Spanish National Securities and Exchange Commission (CNMV). Such public takeover bids may be launched without the need to notify the CNMC, as long as:

• the transaction is notified to the CNMC within five days of filing the request for the bid’s authorisation to the CNMV; and
• the purchaser does not exercise the voting rights attached to the securities or executes them only to safeguard the value of its investment, upon authorisation by the CNMC.

Answer ... Notification may be made as from the time there is a proposal or agreement. For these purposes, a proposal or agreement is considered to exist:

• in cases involving acquisition of control, from the time the parties consent to carry out the transaction and determine the manner and timeframe in which, and the conditions under which, it will be executed. If the parties are companies, the agreement will be considered to exist when it has been approved by the management body of the company (even if the agreement still needs to be adopted or ratified by another body);
• in cases involving a public bid, if there is a resolution of the board of directors of the offeror and its intention to present the offer has been publicly announced; or
• in the case of mergers, when the criteria determined by the corporate legislation are met.

In practice, the CNMC is reluctant to authorise a transaction without receiving a copy of the execution version of the agreements.

Answer ... Yes. An economic concentration cannot be implemented (and therefore closed) until it has been authorised (expressly or tacitly) by the CNMC and must be suspended until its clearance.

Failure to comply with this standstill obligation may lead to the imposition of fines (see question 7.1).

However, on the request of the notifying parties, the CNMC may waive the standstill obligation after considering certain factors, such as the damage that such obligation would cause to the undertakings concerned. This waiver may be subject to conditions that guarantee the effectiveness of the CNMC’s final decision on the merger. The CNMC has granted waivers only in very exceptional circumstances.

Moreover, under certain conditions, this standstill obligation does not apply to public takeover bids (see question 3.6).

Answer ... Yes, the notification will be publicly announced by the CNMC on its website through a press release. Moreover, the CNMC also publishes its decisions on its website.

The notifying parties may file a reasoned request for the CNMC to keep confidential any information that constitutes a business secret. The CNMC will decide on the confidentiality request before publishing its final decision on the merger and the notifying parties may appeal the decision on the confidentiality request if necessary.