Yes:

1. Law No 15/2007 (the “Competition Act”);
2. Law No 3/2013 creating the CNMC;
3. Royal Decree 261/2008 (Clarification of substantive and procedural matters in the Competition Act); and
4. Since Spain is a member of the European Union, in addition, it is subject to the provisions of the European Union Merger Regulation (“EUMR”).

Comisión Nacional de los Mercados y la Competencia (National Competition and Markets Commission, the “CNMC”).

The European Commission will have exclusive jurisdiction over mergers with an EU dimension, e.g. where the thresholds established in the EUMR are exceeded. That is, on the basis of the "one-stop-shop" principle, once a merger falls under the thresholds of the EUMR, it is exempted from notification in the Member States of the European Economic Area (the "EEA", comprising the Member States of the EU, Iceland, Liechtenstein, and Norway), Spain included. Consequently, the Spanish merger control regime will not apply.

If only national thresholds are met, the merger will fall outside the scope of the EUMR and therefore the European Commission will not have jurisdiction over it. In this event, the merger may still be subject to the Spanish merger control regime if the thresholds established in the Competition Act are triggered.

However, there are certain exceptions to these rules:

• Referral to national competition authorities: Mergers with an EU dimension may fall under national jurisdiction based on (i) the "legitimate interest" clause (Article 21(4) of the EUMR), or (ii) the "distinct national market" clause (Articles 4(4) and 9 of the EUMR).
• Referral to the European Commission: The European Commission may have jurisdiction over a concentration without EU dimension, if the merger (i) meets the national thresholds of at least three Member States (Article 4(5) of the EUMR), or (ii) "affects trade between the Member States and threatens to significantly affect competition within the territory of the Member State or States making the request", where national thresholds are not met (Article 22 of the EUMR).

If the merger qualifies as a "concentration" within the meaning of Article 7 of the Competition Act (see infra "What kinds of transactions are "caught" by the national rules?") and the thresholds set in Article 8 of the Competition Act are met, its notification is mandatory (see infra "What are the relevant thresholds for notification?").

According to Article 9 of the Competition Act:

1. the parties responsible for notification are the merging parties, the party or parties that will acquire control post-transaction of all or part of the targeted undertaking(s) and the parent companies which have joint control of a full-function joint venture;
2. the transaction must be notified prior to its implementation;
3. the notification has a suspensory effect.

Requirements regarding the form and content of the filing are further established in Articles 54 to 57 of the Royal Decree 261/2008:

1. an official form must be completed, in which the following data must be provided: information on the parties, description of the transaction, ownership and control structure, information on affected markets and description of the potential efficiencies arising from the notified merger (Article 56);
2. an abbreviated notification form, requiring significantly less market information and data, is foreseen by Article 57 when specific conditions are met.

The Competition Act applies, as established in its Article 7(1) and (2), to any transaction modifying the structure of control of the undertakings concerned on a lasting basis by means of (i) a merger of two or more previously independent undertakings; (ii) take-over of the whole or part of one or more undertakings; c) the creation of a joint venture and the acquisition of joint control over an undertaking, when the latter permanently carries out the functions of an independent economic entity and does not have, as its fundamental objective or effect, the coordination of the competitive behavior of the parent companies.

Control can be established through agreements, rights, or any other means which, in consideration of factual and legal circumstances, confer the ability to exercise decisive influence over the activities of an undertaking, in particular through:

1. ownership or the right to use all/ parts of the assets of an undertaking; or
2. agreements, rights or any means that confer a decisive influence on the composition, voting or decisions of the controlling bodies of an undertaking (Article 7 of the Competition Act).

As for the exceptions, the following transactions do not fall under the consideration of a concentration:

1. purely internal reorganizations (e.g. within the same group);
2. holding, on a temporary basis, shares that have been acquired for resale by a credit or other financial institution or insurance company, provided that the voting rights attached to such holdings are not exercised for the purpose of determining the competitive behavior of said undertaking;
3. the acquisition of securities by financial holding companies on a temporary basis provided that the voting rights in relation to the holdings are exercised only to maintain the full value of those investments;
4. the acquisition of shareholdings or assets in receivership by an insolvency administrator.

Although there are no fixed shareholding thresholds, the acquisition of a minority shareholding allowing the exercise of decisive influence (e.g. control) must be notified, as long as the thresholds on turnover and market share are met.

Yes. Spanish Merger Control provisions will apply without distinction to both local and foreign-to-foreign concentrations if the relevant thresholds are met, regardless of the place of incorporation of the parties or whether the parties have assets in Spain, as thresholds are referred to sales in Spain.

Either of the following two thresholds have to be met in order for the transaction to require prior approval (Article 8 of the Competition Act):

1. Turnover:
1. combined turnover in Spain of the undertakings involved exceeds EUR 240 million during the last financial year; and
2. turnover in Spain of each of at least two undertakings involved exceeds EUR 60 million during the last financial year.
2. Market share:
1. as a consequence of the concentration, a share equal to or higher than 30% of the relevant product or service market at the national level or in a geographical market defined within the same, is acquired or increased;
2. unless:

• turnover of the target in Spain is less than EUR 10 million; and
• combined market share of the parties is less than 50% in the Spanish market or in a market defined within Spain, in which case no notification or approval is required.

Filing is mandatory, must be done pre-closing and has a suspensory effect. Failure to notify may give rise to the imposition of fines of up to 5% of the total worldwide turnover of the infringing company in the financial year immediately preceding the year in which the fine is imposed.

The decisive date to establish jurisdiction is the date on which a binding legal agreement is concluded, a public bid is approved by the board of directors and announced, or controlling interest is acquired or the date of first notification, whichever date is earlier. It is also possible to establish jurisdiction before, as a notification may be made on the basis of good faith and sufficiently concrete intention to conclude an agreement (e.g. on the basis of a letter of intent or a memorandum of understanding).

Yes. The transaction cannot be implemented without approval. There are however two possible exceptions:

1. in the event the parties demonstrate sufficient justification, it is possible to waive the suspensory obligation and proceed with the closing of the transaction before clearance. In practice, this derogation has only very rarely been granted; or
2. in the event of a public takeover bid, the notification of the transaction should be made within five working days from the filing for authorization of the bid to the Comisión Nacional del Mercado de Valores (Spanish Securities Market Commission, "CNMC"), provided that the buyer does not exercise the voting rights inherent to the equity concerned until the approval of the transaction or unless the CNMC grants a derogation.

The notification must be presented before the CNMC following the official model of ordinary notification as per ‘Annex II’ contained in Royal Decree 261/2008, or the official model of abbreviated form as per ‘Annex III’ of said Royal Decree. In the event of joint notification, a single form will be used.

The filing mainly gathers information regarding (i) parties, (ii) nature, characteristics and dimension of the merger, (iii) ancillary restraints, (iv) property and prior control, (v) markets definition, (vi) relevant markets and (vii) general questions.

Notifying parties may provide all the analyzes, reports or studies carried out which they consider relevant in relation to the concentration.

Notifying parties may also address a confidential draft of the notification form in order to clarify the formal or substantive aspects of the concentration to the CNMC.

As established in the Annex to Law 3/2013, the range of filing fees is currently as follows (these are annually updated):

1. abbreviated form notification: EUR 1,576.51;
2. ordinary form notification: fees are based on the combined turnover in Spain of all the parties to the transaction:
1. EUR 240 million or less: EUR 5,502;
2. more than EUR 240 million but less than, or equal to, EUR 480 million: EUR 11,004.31;
3. more than EUR 480 million but less than, or equal to, EUR 3 billion EUR: 22,008.62;
4. more than EUR 3 billion but less than, or equal to, EUR 21 billion: EUR 43,944 plus EUR 11,004.31 for each full EUR 3 billion of combined turnover over EUR 3 billion;
5. more than EUR 21 billion: EUR 109,806.

In the event of referral by the CNMC to the EC under Article 22 of the EUMR, filing fees will be refunded. On the contrary, in case of a successful referral triggered by the parties under Article 4(5) of the EUMR, filing fees will not be refunded.

As a first step of the merger review process, the CNMC highly recommends initiating a pre-notification procedure (although it is not compulsory), in which the parties should present a draft notification form. The CNMC may send informal requests for information.

Once the CNMC considers the form as complete, it will instruct the parties to proceed with the formal notification.

The CNMC will review the notification addressed by the parties for the sake of completeness:

1. if the notification is deemed complete and the filing fee has been paid, the review period will start on the date of notification;
2. if, on the contrary, the notification is deemed incomplete, the CNMC will give the parties a 10-working days period to provide the missing information. In the event that the latter is not done by the parties, the notification will be presumed withdrawn (filing fees will not be refunded).

The merger review process starts with Phase 1, which entails an initial review by the CNMC. Within Phase 1, the CNMC may address requests for information (“RFIs”) not only to the notifying parties but also to third parties and relevant authorities (such as energy, telecommunications or insurance regulatory bodies). These requests will have a suspensory effect over the review period.

In the event the CNMC considers the remedies offered by the parties not to be sufficient, it will release a decision referring the transaction for a subsequent investigation in Phase 2. The CNMC will publish the decision on its website, and provide interested third parties (e.g. customers, competitors, regional authorities, etc.) with a summary of the identified concerns.

Although most transactions receive unconditional clearance within Phase 1, notifying parties can offer remedies should the CNMC identify competition concerns:

Within Phase 2, the CNMC will carry out a thorough and in-depth review, which will require the gathering of an important volume of documents and information:

1. the CNMC will address multiple RFIs to the parties, usually providing them with short deadlines to reply. If the parties fail to respond to the CNMC’s inquiries within the established deadline, it may result in the suspension of the review period;
2. the CNMC may issue a “Statement of Objections” in which it sets out its preliminary conclusions and celebrate State of Play meetings in order to inform the parties of said conclusions.

As the last step of this process, the CNMC will address a final decision on the transaction, in which it assesses the likelihood of a substantial lessening of competition in Spain due to the transaction. The CNMC may:

1. approve the merger unconditionally;
2. approve the merger subject to specified remedies offered by the parties, or conditions imposed by the CNMC; or
3. prohibit the merger.

Regarding time limits, it depends on whether the notification is made through an ordinary or an abbreviated form. In case it was notified through an abbreviated form, the CNMC must resolve the procedure within 15 working days, provided a prenotification was carried out.

In case it is notified through an ordinary form, the CNMC must abide by:

1. Phase 1:
1. one calendar month from formal notification (in the event RFIs are sent, this deadline may be suspended);
2. this deadline may be extended by up to 10 additional working days if remedies are proposed in Phase 1.
2. Phase 2:
1. three calendar months from initiation of Phase 2;
2. up to 15 additional working days if remedies are proposed in Phase 2.

In addition, the Spanish Competition Act includes the possibility to consult the CNMC if a certain transaction must be notified (Article 55.2 of the Competition Act). The CNMC must resolve the consultation within 1 month from the date of its receipt.

However, the CNMC can extend or suspend these deadlines whenever:

1. information is requested from third parties;
2. collaboration between the CNMC and other regulators takes place; or
3. CNMC addresses RFIs to the parties (in which case the clock is stopped until the parties provide complete responses).

While extensions in Phase 1 are less common, particularly within the abbreviated notification procedure, extensions and suspensions are frequent in Phase 2 due to the relatively short review period. In any event, the CNMC initiates very few Phase 2 per year.

The CNMC assesses economic concentrations based on their possibility to imply an obstacle to the maintenance of effective competition in all or part of the national market. As established in Article 10 of the Competition Act,  when adopting its decision, the CNMC will consider the following elements:

1. structure of all relevant markets;
2. the market position of affected companies, their economic and financial strength, actual or potential competition of companies located inside or outside the national territory;
3. choice of suppliers and consumers, their access to sources of supply or markets;
4. existence of barriers to accessing those markets;
5. evolution of supply and demand for the products and services in question;
6. bargaining power of the demand or supply and their ability to offset the market position of the affected companies; and
7. economic efficiencies derived from the concentration and, in particular, the contribution that the concentration may make to the improvement of production or commercialization systems as well as to business competitiveness, and the extent to which said efficiencies are transferred to intermediate and final consumers, specifically, in the form of a greater or better supply and lower prices.

Ancillary restrictions which are directly related to the operation and which are necessary for the operation are to be included in the assessment carried out by the CNMC. 

See supra "Please provide an overview of the merger review process...". The CNMC may decide to:

1. approve the merger unconditionally;
2. approve the merger subject to remedies offered by the parties, or conditions imposed by the CNMC; or
3. prohibit the merger.

Yes, parties can address competition concerns by providing commitments (behavioral and/ or structural). The approval of the concentration will be subject to compliance thereto. No monitoring trustee will be required, but the CNMC will monitor, normally for 5 years, on a yearly basis, that commitments or conditions are complied with.

Any party with a notification obligation, that is, (a) merging parties, (b) parties acquiring control or keeping it where the control structure is changing, and (c) parents of a new full-function joint venture, is liable to fines for failure to notify. The seller, however, cannot be fined, provided that it does not retain a controlling interest.

Fines for failure to notify (or "gun-jumping") can reach up to 5% of aggregate turnover and can be even higher if additional fines are added in case the request of the CNMC to make a filing is disregarded. In this case, daily penalty fines could be imposed.

It is also worth mentioning that the Competition Act does not specify whether fines are based on Spanish or worldwide turnover. However, the CNMC has traditionally considered the parties' Spanish turnover.

The CNMC should be considered as an active enforcer, and fines for failure to notify have so far gone up to EUR 250,000.

The CNMC may, inter alia, force parties to dissolve the transaction, or to divest acquired shares or assets, although it has so far never done so. In any event, transactions in which notification and approval are required, which are closed before receiving clearance, may be deemed void under Spanish law.

The implementation of a merger disregarding a prohibition or conditional decision of the Council of the CNMC may give rise to fines of up to 10% of the combined turnover of the parties.

No. However, please note that, if a transaction "affects trade between Member States and threatens to significantly affect competition within the territory of the Member State or States making the request", competition authorities of the EEA Member States may request the EC to review a transaction, even if the European thresholds are not met.

If the CNMC is aware of the implementation of an unnotified transaction, it may send a request for information to the parties, so it can gather information and evaluate whether the transaction meets the applicable thresholds. If such is the case, the CNMC will require the parties to notify the transaction, and it will initiate an infringement proceeding in parallel. As explained in our response to "Describe the sanctions for not filing or filing an incorrect/incomplete notification", fines up to 5% of aggregate turnover can be imposed in case of breach of the obligation to notify.

The CNMC has recently created a unit responsible for monitoring the market, including transactions that may have not been notified.

Over the last few years, the following trends regarding merger control by the CNMC can be identified:

1. the active role of the Council of the CNMC in the course of the proceedings, e.g. requiring market tests to be done;
2. in some cases the CNMC has taken into consideration the reduced size of the market when assessing the implications of a merger, in line with the de minimis rule applicable in jurisdictions such as the UK;
3. limited number of Phase 2 procedures (e.g. until July 2023, the CNMC decided to start Phase 2 proceedings in relation to four mergers during said year —C/1305/22 Grimaldi / TFB; C/1336/22 BSC / M.I. TECH; C/1348/22 Logista Publicaciones / Distrisur; and C/1262/22 Algeco / Balat—; previously, between one and three mergers per year were cleared in Phase 2).

None at this time.