This presentation by Spain (CNMC), was made during the presentations on “Tools for Addressing Competitive Neutrality” held at the 67th meeting of the OECD Working Party No.2 of the Competition Committee on 3 June 2019. More information on the topic can be found at ww.oecd.org/competition/competitive-neutrality.htm.

1. Competition advocacy beyond
advice – challenging restrictions to
competition in regulation
Joaquín López Vallés
Director, Advocacy Department
OECD Competition Committee - Working Party 2
3 June 2019

2. Competition advocacy… refers to… the
promotion of a competitive environment by
means of non-enforcement mechanisms,
mainly through its relationships with other
governmental entities and by increasing public
awareness in regard to the benefits of
competition.
www.internationalcompetitionnetwork.org/advocacy
2

3. Why should competition agencies have a focus on
the public sector?
Proposition 1: Public intervention can be as harmful for competition as anti-
competitive behaviour
- Legal barriers to entry/expansion/competition
- Public/State aid
- Public procurement
Proposition 2: Competition authorities are well placed to advocate pro-
competitive regulation
- Independence from Government/private interest
- Economic and legal specialization

4. Addressing competitive neutrality –
traditional tools
Ex ante
intervention
Ex post
intervention
Binding
instruments
Quasi-binding
instruments
Non-binding
instruments
Regulatory reports Market studies

5. Addressing competitive neutrality –
additional tools
Ex ante
intervention
Ex post
intervention
Binding
instruments
Regulatory reports
(if mandatory)
Market studies
(if mandatory)
Quasi-binding
instruments
Court challenges
(active capacity)
Non-binding
instruments
Regulatory reports Market studies

6. Active capacity by the CNMC – legal basis
2005 White Paper on the Reform of the Spanish Competition System
2007 Competition Law – grants the CNMC legal active capacity
to challenge before courts administrative acts and regulatory provisions
of a rank lower than a law that raise obstacles to effective competition
2013 reform of the Competition Law – maintains active capacity
2013 Law on Market Unity – additional legal active capacity for the CNMC
to challenge before courts administrative activity and regulatory
provisions that raise obstacles to the freedom of movement or of
establishment of goods and services

7. Active capacity by the CNMC – main features
- Ex officio capacity
- All sorts of regulatory provisions and administrative activity
Of a rank lower than a law
- All Government levels
i.e. central, regional and local

8. Active capacity by the CNMC – legal test
- Restrictions to competition
…but not elimination of competition
- Lack of necessity
i.e. the restriction is necessary to protect a legitimate general
interest
- or Lack of proportionality
i.e. there may be less restrictive means to achieve the intended
public interest goals

9. Active capacity by the CNMC – stats
0 0 0
2
0
1
0
1
4
1
2
6
1
2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
By year of challenge
7
6
2
1 1 1
Tourism Transport Retail Agriculture Energy Public
procurement
By economic sector By Government level
Central Regional Local

10. Results and lessons learned
Outcome of challenged cases:
- 7 cases with complete victory – i.e. bad regulation repealed
- 11 cases pending in courts
Big-picture effects:
- Disciplinary effect on the public sector
- Improvement of advocacy by the CNMC