Spanish Competition Litigation

Once again the Spanish Central High Court (Audiencia Nacional) has agreed to suspend on a precautionary basis a sanction imposed last July by the competition watchdog, the National Markets and Competition Commission (CNMC), this time against Fomento de Construcciones y Contratas, S.A (FCC), another relevant Spanish construction group.

The CNMC imposed on July 5, 2022, a sanction against FCC, including a €40.4 million fine and the prohibition to contracting with the public administration for allegedly altering the competitive process in infrastructure tenders for more than 25 years.

In its brief, FCC argued that its available cash is only 18.6 million euros, so it would have to resort to external financing to pay this fine, with the consequences that this would have on the company’s performance.

In any case, this is a precautionary suspension that is also conditional on the company presenting a guarantee in the form of a bank guarantee or other similar guarantee for the same amount as the fine, which ensures payment and thus the indemnity of the public treasury and the general interest in the event of a final rejection of the appeal.

As we saw a few weeks ago, this sanction was part of an overall fine of €203.6 million imposed on the leading Spanish construction companies, Acciona, Dragados (ACS), FCC, Ferrovial, OHLA and Sacyr.

Interestingly, all these companies appealed the fine before the Audiencia Nacional and, together with FCC, OHLA, Sacyr, Ferrovial and Acciona, in that order, the Spanish High Court has granted the injunctions, which means suspending the fines of €21.5, 16.7 and €38.5 million, respectively.

However, except for the FCC, all the other companies also obtained the precautionary measure to suspend the ban on contracting imposed by the regulator. In the case of this company, at least in this particular appeal, it did not request the suspension of this ban, so the court did not have to rule on this matter.

Still, the Audiencia Nacional has yet to rule on the largest fine imposed on Dragados (ACS), with a fine of € 57.1 million.

AN Suspension fine FCC (CNMC Cartel)

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