Answer ... In Spain, there are two phases in the review process.

Phase I starts with submission of the notification form to the Competition Directorate of the National Markets and Competition Commission (CNMC). The Competition Directorate will prepare a report taking into account various factors (see question 4.8) and will issue a proposal for resolution. Based on that, the Council of the CNMC will issue a decision to:

• authorise the merger;
• subject the authorisation to commitments proposed by the notifying parties to address the potential obstacles to competition resulting from the merger;
• open a Phase II investigation, where it considers that the merger may lead to obstacles to competition;
• send the merger to the European Commission, where it considers that the European Commission has jurisdiction over the merger; or
• close the proceedings, where it considers that the transaction is not subject to merger control.

Where the Council decides to open a Phase II investigation, the Competition Directorate will publish a non-confidential brief note that shall be communicated to those natural or legal persons that may be affected by the transaction and to the Council of Users and Consumers, so they can submit their comments on the matter within 10 days. Where the transaction will affect an autonomous community, this brief note will also be communicated to the competent bodies of that autonomous community, together with a non-confidential version of the notification, so that they can issue a non-binding report on the merger.

The Competition Directorate will also issue a statement of objections setting out the potential obstacles to competition deriving from the merger, which will be notified to interested parties so they can submit their comments on the matter within 10 days. The Competition Directorate will issue a final proposal for resolution.

The Council will review this proposal for resolution and a hearing may take place upon request of the notifying parties. The Council will then adopt a final decision to:

• authorise the transaction;
• submit the transaction to certain commitments proposed by the notifying parties or conditions imposed by the CNMC;
• prohibit the transaction; or
• close the proceedings.

This final decision must be notified to the interested parties and the minister of economy and finance.

Where the CNMC’s decision is to prohibit a merger or authorise it subject to commitments or conditions, the minister of economy and finance may decide to elevate it to the Council of Ministers for reasons of general interest. In such case, the Council of Ministers will either confirm the CNMC’s decision or authorise the transaction, with or without conditions, on the grounds of general interest (see question 4.10).

During Phases I and II, the notifying parties can submit commitments to the CNMC in order to address any concerns on the merger, either on their own initiative or at the CNMC’s request (see question 5.1).

Phase I can take a maximum of one month, which will be extended by 10 working days if the notifying parties submit commitments in order for the transaction to be authorised. Phase II can last up to two months, which will be extended by 15 additional working days if the notifying parties submit commitments in Phase II. Moreover, the minister of economy and finance has 15 days from receipt of the CNMC’s decision to adopt and notify the decision to elevate it to the Council of Ministers; and the Council of Ministers has one month from receipt of the decision to elevate in order to adopt and notify its decision.

If the CNMC does not adopt and notify a decision within the specified timeframes in either Phase I or Phase II, the transaction is deemed to be tacitly authorised, with the following exceptions:

• The merger was not notified and the CNMC has required the notifying parties to notify (see question 7.1);
• The CNMC has requested the notifying parties to supply additional information or documents and they do not comply with this request, or comply only after the deadline to do so has elapsed; or
• The CNMC decides to send the merger to the European Commission.

If the minister of economy and finance or the Council of Ministers does not adopt and notify the decision within the specified timeframes, the CNMC’s final decision during Phase II will become automatically effective and enforceable.

In both Phase I and II, the CNMC may stop the clock for a number of reasons (see question 4.2).

Answer ... The CNMC can suspend the timetable for review in any of the following circumstances:

• An interested party is requested to correct deficiencies or submit documents or other information.
• A third party or any other public authority is requested to submit documents or other information.
• Cooperation with the European Commission or any other national competition authority is necessary.
• There is an administrative or judicial appeal.

The notifying parties may engage in pre-notification contacts with the CNMC. This usually speeds up the process, as it reduces the likelihood that the CNMC will stop the clock due to requests for information (see question 3.2).

Answer ... It is possible to notify a concentration through a short form, which reduces the quantity of information to be submitted to the CNMC, in any of the following scenarios:

• No horizontal or vertical overlaps exist between the undertakings concerned.
• The market shares of the undertakings concerned are de minimis so that it is unlikely that the concentration will significantly affect competition. The concentration is deemed to comply with this criterion when:
• • the combined market shares of the undertakings concerned is below 15% in any product or service market in Spain or any geographic market within Spain, or is below 30% and the additional share resulting from the concentration is no higher than 2%; and
  • the individual or combined market share of the undertakings concerned is below 25% in any market vertically related to a product market in which any other undertaking concerned operates in Spain or any geographic market within Spain.
• As a result of the transaction, one party acquires sole control of one or more undertakings (or parts thereof) over which it already had joint control.
• In case of a joint venture, the joint venture has or plans to have either marginal activities in Spain (with a turnover not higher than €6 million) or no activities at all.

Even if the above circumstances are met, the CNMC may request the notifying parties to submit a standard form in any of the following scenarios:

• The relevant markets are difficult to define.
• One of the undertakings concerned is a new operator or a potential operator or owner of an important patent.
• It is not possible to properly determine the market shares of the undertakings concerned.
• The relevant markets have high barriers to entry, a high level of concentration or known competition concerns.
• At least two of the undertakings concerned are present in closely related adjacent markets.
• The transaction may lead to coordination issues.
• As a consequence of the transaction, one party acquires sole control over a joint venture over which it already had joint control, where the acquiring party and the joint venture have jointly a strong market position or have strong positions in vertically related markets.
• The short form contains incorrect or misleading information.

If the CNMC requests the notifying parties to submit an ordinary form, the deadline for the CNMC to adopt and notify the decision will start again on the date when the ordinary form is filed.

Answer ... The CNMC cooperates with the European Commission and the national competition authorities of EU member states through the European Competition Network (ECN).

In addition, the CNMC can cooperate with other authorities that are not part of the ECN.

Answer ... The CNMC can issue requests for information addressed to interested parties so that they correct deficiencies and submit documents or other information. The CNMC may also request documents or information from third parties or public authorities.

In such cases, the addressees of the information requests are under a duty to respond and provide any data and information that they have regarding the request in a manner that is complete, correct, true and not misleading. Failure to do so will amount to a minor infringement, which could lead to a fine of up to 1% of the total turnover (at a group level) of the infringing company in the immediately preceding year. Moreover, the maximum timeframe for the CNMC to issue and notify the decision may be suspended (see question 4.2).

Answer ... Third parties may request to be recognised as ‘interested’ parties to the proceedings during Phase II in order to have full intervention therein. This request should be submitted to the CNMC, together with any allegations, within 10 days of the CNMC issuing its brief note on the merger (see question 4.1). The CNMC will then decide whether to accept or deny such request within 10 days, after reviewing the third party’s proven legitimate interest.

Third parties can also participate in the review process as a consequence of receiving a request for information from the CNMC (see question 4.5).

Answer ... Yes, it is possible to carry out a carve-out in Spain and implement the concentration in other countries, as long as the implemented transaction has no effect in Spain. However, it is highly recommended to discuss this with the CNMC before closing the transaction in other jurisdictions. In order to do so, a reasoned request may be submitted at any time during the review process.

Answer ... The CNMC must evaluate economic concentrations taking into consideration the possible obstacles to the maintenance of effective competition in all or part of the Spanish market. This test does not vary depending on sector.

The main elements taken into account when assessing an economic concentration include:

• the structure of all relevant markets;
• the market position of the undertakings concerned and their economic and financial strength;
• actual and potential competition from companies located within or outside Spain;
• the possible alternatives for suppliers and consumers and their access to sources of supply or markets;
• any barriers to entry to those markets;
• offer and demand trends, bargaining power and their ability to compensate the position of the undertakings concerned in the market; and
• the economic efficiencies to be derived from the transaction.

Answer ... According to the Competition Act, in the event of the creation of a full-function joint venture or the acquisition of joint control over an existing entity has the object or effect of coordinating the competitive behaviour of undertakings that continue being independent (ie, the parent companies), the CNMC will assess such coordination under articles regulating anti-competitive conduct (ie, Articles 1 and 2 of the Competition Act).

Answer ... The Spanish merger control regime adopts a ‘substantial lessening of competition’ test, which reflects an economic approach.

When the CNMC prohibits a concentration or authorises it subject to conditions under a Phase II investigation, the Council of Ministers may review such decision and assess the economic concentration by taking into account criteria of general interest other than the defence of competition. The concept of ‘general interest’ includes, in particular, the following:

• national defence and security;
• protection of public health and safety;
• free movement of goods and services within the national territory;
• protection of the environment;
• promotion of technological research and development; and
• a guarantee of adequately maintaining the aims of sector regulation.