ESG measures or sustainability agreements are not explicitly included in the Spanish competition law regime. However, the current regime foresees the following:

• Antitrust: similarly to Article 101(3) of the TFEU, Article 1(3) of the Spanish Competition Act (“SCA”) states that “the prohibition of section (1) does not apply to agreements, decisions, recommendations or practices that contribute to an improvement of the production or distribution of goods, or to the promotion of technical and economic progress, as long as these behaviors allow consumers or users a fair share of its benefits (…)”.

This provision could, in principle, be applicable to agreements between competitors that entail a clear environmental improvement if the requirement related to the customers' or users’ fair share is interpreted as equivalent to a general benefit to society.

In any event, the absence of a specific regulation, and therefore of parameters on which to base the analysis by the competition authorities, creates a great degree of legal uncertainty for companies or associations of companies.

• Mergers: the merger control regime in Spain does not explicitly refer to ESG measures either.

In exceptional cases, the government may intervene and review mergers when the Spanish Competition Authority (Comisión Nacional de los Mercados y la Competencia or “CNMC”) forbids a concentration or approves it subject to remedies. Article 10 of the SCA indicates that environmental protection could serve as a criterion for assessing economic concentrations by the Spanish Government.

Hence, if an economic concentration may serve as a useful tool for the protection of the environment and the transaction has been forbidden or authorized subject to remedies by the CNMC, the Spanish Government may decide to intervene and authorize the transaction.

It is very unlikely that new regulations come into place in Spain in the short term. The CNMC has indicated in its response to a call to contributors regarding the Green Deal (see here) that “the appropriate legal response to this problem must, in any event, be given at the EU level. It would make no sense for the solution to be sought at the national level. Global problems require global solutions”.

There is no specific guidance on the role of ESG in the competition law analysis applied to mergers.

There is no specific guidance in this regard.

The CNMC explained in the call for contributors regarding the Green Deal that “the relationship between competition rules and sustainability is one of the most relevant issues for the competition authorities’ agenda in the coming years”. It also acknowledged that “competition policy does not have sustainability among its primary objectives, but the efficiency and smooth functioning of markets for the benefit of consumers.”

In addition, it stated that “a Competition Authority may introduce sustainability objectives into its actions in two main ways. First, the Authority can focus its efforts and give greater visibility to those most relevant actions from a sustainability perspective (e.g. studies or investigations in the sectors most critical to achieving sustainability commitments). Secondly, the Authority may adopt its analysis criteria in its decisions to the sustainability objectives, explicitly identifying in its analysis those actions that benefit sustainability (or being particularly intransigent with actions that harm it) according to established legal guidelines and control of their proceedings by the courts”.

In Spain, the CNMC is still focused on the first action plan and has not yet adopted established legal guidelines. For instance, the CNMC Strategic Plan (2021-2026) and the 2021-2022 Action Plan identify as one of its main challenges the energy transition and establish the need for more friendly-environmental markets.

There is no specific mechanism for the CNMC to provide guidance to undertakings on proposed ESG initiatives. However, the CNMC has informal communication channels for those companies who may wish to make an inquiry. However, the responses to such queries are not binding.   

There is no specific quantification or calculation of ESG effects in Spain.

The CNMC would analyze ESG measures under the current regulatory framework.

To date, there are no precedents related to ESG measures and the SCA in Spain.

However, the CNMC has analyzed sustainability matters in application of Law 20/2013, of 9 December, on Market Unity (“Law 20/2013”). Besides de application of the SCA, the CNMC is responsible for ensuring free access to, the exercise of and expansion of economic activities throughout the national territory. As the grantor of market unity, the CNMC has powers to (i) issue reports on administrative claims made under the scope of Art. 2(6) of Law 20/2013; (ii) issue reports under Art. 29 of Law 20/2013 in cases where operators, consumers, or users report the existence of obstacles or barriers related to the application of said Law; (iii) file administrative dispute appeals in cases of administrative provisions, actions, or activities that act against market unity; and (iv) issue reports at the request of Courts and Tribunals during administrative dispute cases filed by operators due to violation of Law 20/2013.

In July 2022, the CNMC published three reports whereby it concluded that several restrictions to economic activities were justified for compelling reasons of general interest.

The first report (UM/059/22) relates to the urban planning regulations of the City Council of Canet d'Adri (Girona) that only legitimized the telecommunication anthems and attached buildings of three companies in the Rocacorba Massif. According to such regulations, the rest of the companies must sign an agreement with these three entities to be able to use their infrastructures. The CNMC considered that this restriction could be justified by an overriding reason of general interest in protecting the environment, given that the Rocacorba Massif is included in the Plan for Spaces of Natural Interest of Catalonia. In that case, the City Council should justify the proportionality of the restriction.

The CNMC issued a second report (UM/056/22) on the refusal, by the City Council of Ontinyent (Valencia), to authorize the installation of photovoltaic panels in a townhouse. The report concluded that this limitation was justified by the imperative reason of the general interest of protecting the urban environment, in accordance with Article 5 of Law 20/2013. Specifically, the General Urban Planning Plan for Ontinyent prohibited modifying the façade and roof of the buildings that were part of the city's “architectural ensembles”, in order to preserve their unique characteristics.

The third report (UM/058/22) analyzed the denial, by the City Council of Villalbilla, of the building license to install a gas station and a washing center. The report concluded that this restriction of Article 5 of Law 20/2013 was justified by the imperative reasons of the general interest to protect public health, public safety, the environment, and the urban environment.

General rules on private actions apply.

Third parties may bring a claim for damages caused as a result of a restrictive agreement prohibited by the SCA or TFEU before the commercial courts.

In Spain, it has always been possible to bring private claims for damages resulting from competition infringements on the grounds of general civil rules. Royal Decree-Law 9/2017 of 26 May (which transposed the Antitrust Damages Directive) introduced a special procedure into the Spanish legal system (with specific procedural and substantive rules).

Although class actions are not expressly permitted under Spanish law, in cases concerning the defense of consumers and users, consumer associations have legal standing to protect not only the interests of their members but also the general rights of all consumers and users (Article 11, Civil Procedure Law 2000).