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See original article in english Spain: The Audiencia Nacional annuls, due to insufficient evidence, a decision of the Spanish competition authority (CNMC) fining two security companies and their managers for having participated in the sharing of the cash-in-transit and cash-handling market (Prosegur / Loomis)

Spain : The Audiencia Nacional annuls, due to insufficient evidence, a decision of the Spanish competition authority (CNMC) fining two security companies and their managers for having participated in the sharing of the cash-in-transit and cash-handling market (Prosegur / Loomis)

The Audiencia Nacional has annulled a decision of the Spanish competition authority (CNMC) fining two security companies and their managers for having agreed to share the Spanish cash-in-transit and cash-handling market, fix prices and exchange commercially sensitive information.

Following an anonymous complaint, in November 2014 the CNMC started to investigate whether Prosegur and Loomis had infringed Article 1 of the Spanish Competition Act (LDC) by sharing the various lots of two public tenders issued by the national postal incumbent, Correos, for the collection, transport and custody of funds, postage and philatelic items in buildings belonging to the Correos group’. Both firms would have allegedly agreed to allocate the two aforementioned tenders without competing with each other.

In November 2016, the CNMC fined Prosegur, Loomis and two of their managers after finding that the companies had been illegally sharing the cash-in-transit and cash-handling market from 2008 to 2015 (CNMC, decision of 10 November 2016, case S/DC/0555/15 Prosegur-Loomis). According to the CNMC, the companies had manipulated tenders and resorted in an abusive and unjustified manner to the outsourcing of services with the aim of sharing strategic clients between them. These practices had eliminated the competitive pressure between them, allowing them to maintain their relative market position over a long period of time and prevent new competitors from entering the cash-in-transit and cash-handling market in Spain. The CNMC also found that the duopoly held by the two companies in the aforementioned market had aggravated the anticompetitive effects of such practices.

However, in June 2022, the Audiencia Nacional annulled the CNMC decision after finding that the competition authority failed to prove the existence of a common plan and a concerted practice between the two security companies.

The agreements and concerted practices carried out by the security companies were qualified by the CNMC as a single and continuous infringement. In this sense, the Audiencia Nacional recalls the CJEU case-law in Commission v Verhuizingen Coppens (C-411/11, para 41) which noted that ‘an infringement of Article 81(1) EC can result not only from an isolated act, but also from a series of acts or from continuous conduct. (…) If the different actions form part of an ‘overall plan’, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole’. Moreover, the GC had pointed out in its AC-Treuhand AG case (T-27/10, paras 240 and 241) that the concept of a ’single objective’ underlying the overall plan of the undertakings concerned could not be identified in a generic way with the simple distortion of competition, since that is the prerequisite for classifying the practice as anti-competitive. The consequence of such an interpretation would be that several instances of conduct relating to one economic sector, contrary to Article 101(1) of the Treaty on the Functioning of the European Union, should be systematically characterised as constituent elements of a single infringement. The Audiencia Nacional thus concludes that, in order to qualify several anti-competitive behaviours as a single and continuous infringement, it is necessary that they present a link of complementarity which contributes, by means of an interaction, to the realisation of a single objective with anti-competitive effects sought by their authors in the framework of a global plan of which all the participants are aware (proven or presumed) in such a way that the undertaking either knew or should have known that when participating in the collusive practices it was part of the single agreement and adhered to it.

The Audiencia Nacional then went to analyse whether the CNMC had proved the existence of that concerted practice and of the joint plan integrating the various collusive conducts. The CNMC affirmed that there had been a concerted practice between Prosegur and Loomis with the aim of sharing the market because they had mutually respected each other’s services and customers that they already had before ‘without there being any rational explanation for this behaviour’. In the absence of direct evidence, the CNMC relied on the content of some of the companies’ internal e-mails sent between their employees to conclude on the existence of prima facie evidence of concerted collusive behaviour. The Audiencia Nacional, however, found that the internal e-mails did not constitute valid evidence because it was unclear (i) the reason why the employees of the companies involved had included certain content in them, (ii) whether the emails had been shared between the companies and (iii) whether their content responded to e-mails sent by the other company.

Prima facie evidence will be valid incriminating evidence provided that it is not based on mere suspicion, rumour or conjecture, but on fully accredited facts and that there is a precise and direct link between the basic facts and the one to be accredited. In this case, the Audiencia Nacional considered that the CNMC relied on presumptions and interpretations based on evidence that lacked a direct link to the accredited facts. Consequently, such presumptions were insufficient to establish the existence of a concerted practice between the two companies and attribute liability for participating in the alleged practice.

Furthermore, the Audiencia Nacional notes that the companies had adduced alternative explanations to justify their conduct during the infringement procedure leading to the sanction imposed by the CNMC. The explanations pointed to efficiency gains that the companies would have reached in carrying out the conduct under examination. The CNMC had not, however, looked carefully into such reasons. By contrast, the court did consider the explanations to be reasonable and found that the CNMC should have offered a more thorough motivation to its decision to reject the alternative reasons put forward by the companies.

As a result, the Audiencia Nacional upheld the appeals and annulled the contested decision.

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Rafael Allendesalazar, Beatriz Sanchez-Ortiz, Spain: The Audiencia Nacional annuls, due to insufficient evidence, a decision of the Spanish competition authority (CNMC) fining two security companies and their managers for having participated in the sharing of the cash-in-transit and cash-handling market (Prosegur / Loomis), 23 June 2022, Concurrences N° 4-2022, Art. N° 109531, pp. 168-169

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