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[null,"Prepared By:","Contributors:"]
[null,"Uría Menéndez","Edurne Navarro"]
[null,null,"Patricia Vidal"]
[]
[]
["Sustainability and Competition Global Practice Guide"]
[]
["Report Generated: 11/19/2025"]
[]
["View your report results on next tab"]

{"sheet":"Sustainability and Competition ","index":1,"n_rows":11,"n_cols":2,"rows_kept":11,"cut":false,"hidden":false,"merged":[]}
["Question","Spain"]
["Lex Mundi Sustainability and Competition Global Practice Guide"]
["Are ESG measures/sustainability agreements included in your jurisdictional competition regime?"," ESG measures or sustainability agreements are not explicitly included in the Spanish competition law regime. However, the current regime foresees the following: \n\n \n\t 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 (…) ”. \n \n\n 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. \n\n 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. \n\n \n\t Mergers: the merger control regime in Spain does not explicitly refer to ESG measures either. \n \n\n 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. \n\n 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. \n"]
["If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022?","It is very unlikely that new regulations come into place in Spain in the short term. The \nCNMC has indicated in its response to a call to contributors regarding the Green Deal (see \nhere) that “\nthe 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”.\n"]
["Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct?","There is no specific guidance on the role of ESG in the competition law analysis applied to mergers.\n"]
["Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG?","There is no specific guidance in this regard.\nThe \nCNMC explained in the call for contributors regarding the \nGreen Deal that “\nthe 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.”\nIn addition, it stated that “\na 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”.\nIn Spain, the \nCNMC is still focused on the first action plan and has not yet adopted established legal guidelines. For instance, the \nCNMC Strategic Plan (2021-2026) and the \n2021-2022 Action Plan identify as one of its main challenges the energy transition and establish the need for more friendly-environmental markets.\n"]
["Can parties seek specific guidance from authorities on proposed ESG initiatives?","There is no specific mechanism for the \nCNMC to provide guidance to undertakings on proposed ESG initiatives. However, the \nCNMC has informal communication channels for those companies who may wish to make an inquiry. However, the responses to such queries are not binding.   \n"]
["How, if at all, does your jurisdiction quantify or calculate the ESG effects?","There is no specific quantification or calculation of ESG effects in Spain.\n"]
["What does your legal authority currently permit even if your agency is not yet active on this topic?","The \nCNMC would analyze ESG measures under the current regulatory framework.\n"]
["Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description.","To date, there are no precedents related to ESG measures and the \nSCA in Spain.\nHowever, the \nCNMC has analyzed sustainability matters in application of \nLaw 20/2013, of 9 December, on Market Unity (“\nLaw 20/2013”). Besides de application of the \nSCA, the \nCNMC 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 \nCNMC has powers to (i) issue reports on administrative claims made under the scope of \nArt. 2(6) of Law 20/2013; (ii) issue reports under \nArt. 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 \nLaw 20/2013.\nIn July 2022, the \nCNMC published three reports whereby it concluded that several restrictions to economic activities were justified for compelling reasons of general interest.\nThe first report (\nUM/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 \nCNMC 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.\nThe CNMC issued a second report (\nUM/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 \nArticle 5 of Law 20/2013. Specifically, the \nGeneral 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.\nThe third report (\nUM/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 \nArticle 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.\n"]
["Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation?","General rules on private actions apply.\nThird parties may bring a claim for damages caused as a result of a restrictive agreement prohibited by the \nSCA or \nTFEU before the commercial courts.\nIn Spain, it has always been possible to bring private claims for damages resulting from competition infringements on the grounds of general civil rules. \nRoyal Decree-Law 9/2017 of 26 May (which transposed the \nAntitrust Damages Directive) introduced a special procedure into the Spanish legal system (with specific procedural and substantive rules).\nAlthough 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 (\nArticle 11, Civil Procedure Law 2000).\n"]