Spain's competition authority updates its compliance guidance

The Spanish National Commission on Markets and Competition (CNMC) has updated  its guide on compliance programmes for competition law. The new version retains the approach set out in 2020 but now clarifies the criteria for assessing the effectiveness of compliance programmes and how that effectiveness may influence sanctioning proceedings.

Assessment criteria 

The guide maintains seven criteria for assessing the effectiveness of a compliance programmes. Each assessment is carried out on a case-by-case basis, taking into account the size, activity and risk profile of each company, and prioritising the actual effectiveness of the programme over formal compliance with each indicator.

• Commitment from senior management. Senior managers must visibly promote a culture of compliance, through clear zero-tolerance statements and aligned incentives schemes. Direct involvement of senior managers in serious infringements could demonstrate that the programme is ineffective.
• Practical training proportionate to risk. Training must be regular, measurable and tailored to each group's level of exposure to risk, avoiding generic approaches. It must be updated in response to material changes and, where appropriate, extended to key staff members.
• Internal reporting channel. The company must have an accessible and secure internal reporting channel, in line with whistleblower protection regulations, which guarantees confidentiality and protects individuals against retaliation.
• Independent compliance officer. A compliance officer must be appointed with direct access to senior management, sufficient resources and the ability to act autonomously. Their independence will be assessed in light of their actual position within the organisation and the safeguards against interference.
• Risk map and specific controls. The company must draw up a specific risk map and a proportionate control matrix. Both tools must be dynamic, with periodic reviews and updates in response to material changes.
• Procedures for managing reports and infringements. The company must have agile mechanisms for channelling queries and reports, and a pre-established procedure for investigating and managing any infringement detected, whilst ensuring confidentiality and traceability.
• Transparent disciplinary system. The company must have a well-publicised internal disciplinary regime, consistent with employment law, which provides for proportionate sanctions and, where appropriate, incentives linked to compliance.

Sanctioning proceedings

The guide distinguishes two possible effects of an effective compliance programme in sanctioning proceedings. In both cases, mere formal implementation does not automatically yield benefits: it is necessary to demonstrate the quality of the programme, its effective implementation and its concrete impact on the case.

Fine reduction

A robust programme may help to reduce the sanction where it results in active cooperation with the CNMC or in immediate measures to bring the infringement to an end. It is a necessary condition that the programme is submitted at the start of the preliminary investigation phase; in general, late submissions will not give rise to this benefit. The company must provide documentary evidence of the link between its compliance programme and the cooperative or corrective actions taken.

Public sector bans

The existence of an effective compliance programme may be relevant for the CNMC when proposing not to impose, or to lift early, the ban on contracting with the public sector arising from a competition law infringement. Unlike a fine reduction, the assessment of the programme for these purposes may be carried out either within the framework of the sanctioning procedure itself or once it has been concluded, while the prohibition remains in force, with no time limit on when the programme can be submitted.

However, early submission during the preliminary investigation phase is advisable: it enables the investigating body to base a proposal for exemption on the sanctioning decision itself. The decisive factor will be the programme's actual effectiveness, including controls, supervision, training and internal reporting channels, not the mere existence of policies or certifications.

The annex

The purpose of the annex and questions is to provide a practical self-assessment tool. The guide includes an annex containing indicators structured in line with the seven criteria. Its purpose is to provide companies with a practical self-assessment tool to help identify the strengths and weaknesses of their programmes, as well as to facilitate the tracking and measurement of their effectiveness. 

Specifically, it provides a list of questions structured around the guide's seven sections: management commitment, training, internal reporting channel, compliance officer, risk map and controls, procedures for managing reports and infringements, and disciplinary system.

This enables companies and compliance officers to carry out a systematic self-assessment of their programmes, identifying strengths, weaknesses and areas for improvement in each relevant element.

The CNMC stresses that the annex is not a closed list or a formal checklist, but a flexible reference to be used as part of an overall assessment focused on the programme's real, substantive effectiveness.

Osborne Clarke comment

The update of the guide reinforces a clear message: the CNMC will assess compliance programmes on their substance and results, not on their appearance.

Companies operating in Spain should review their compliance systems in the light of these criteria, ensure that they can demonstrate their effectiveness with concrete evidence, and assess whether their programmes are likely to be viewed positively by the CNMC in any future proceedings.