New CNMC guidance on compliance programmes for competition law
The CNMC has published an update of its Guidelines on compliance programmes in the field of competition law, which, together with the UNE 19603 standard, consolidates the main reference standards for the design, implementation, and evaluation of compliance programmes in this area.
The review does not represent a paradigm shift, but it does provide important clarifications on the impact of compliance programmes on sanctioning procedures and reinforces the requirement for genuine and demonstrable effectiveness, going beyond the mere formal existence of policies, protocols, or internal controls.
Furthermore, developments in the regulatory and sanctioning framework—driven, among other factors, by the transposition of the ECN+ Directive and the growing importance of the prohibition on contracting with the public sector—strengthen the incentives for having effective and demonstrable compliance systems that are correctly implemented and aligned with the CNMC's evaluation criteria.
Key changes
1. Effects on disciplinary procedures
The Guide clarifies two specific effects of compliance programmes:
- Reduction of the sanction (Article 64.3 of the Competition Defense Law), when the programme has contributed to active and effective cooperation with the CNMC or to the adoption of measures aimed at immediately bringing the infringement and its effects to an end. It must be clearly and justified demonstrated how the compliance programme has influenced this active and cooperative behavior and the adoption of specific corrective measures. Furthermore, the programme must be communicated to the authority from the initial phases of the procedure.
- Exemption or lifting of the contracting prohibition (Article 72.5 of the LCSP): compliance programmes can justify these measures at any time, although submitting them at an early stage of the procedure facilitates their evaluation by the authority. Additionally, active cooperation with the competition authority is no longer necessary for lifting the contracting prohibition.
2. Emphasis on real effectiveness
The Guide focuses on the real effectiveness of compliance programmes. The evaluation is not limited to the formal existence of internal policies, but extends to their practical application and their ability to prevent, detect, and respond to infringements. The CNMC requires evidence of effective and verifiable functioning.
3. Greater precision in evaluation criteria
The seven criteria from 2020 remain, but additional guidance has been incorporated, as detailed below.