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SubscribeThe Spanish National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia or CNMC) has authorized a concentration subject, for the first time, to a commitment to adopt a compliance program. The measure aims to prevent the risk of competitors sharing information in the context of creating a joint venture, the main risk identified in the transaction analysis (Case C/1586/25).
Competition compliance as a commitment in a merger control case
Case C/1586/25 – Formigons CAT JV is the first instance in which the CNMC has accepted a compliance program as a commitment to address competition risks identified in relation to a concentration.
The transaction consisted of forming a joint venture (JV) in the ready-mix concrete market, made up of active and competing companies in this industry.
The CNMC ruled out the risk of unilateral effects, since, although the transaction resulted in market shares exceeding 30%, the authority noted that the concrete market is generally characterized by extremely tight margins, excess capacity, product homogeneity, and the presence of several significant competitors. No vertical risks or portfolio effects were identified either.
The main concern lay in the potential coordinated effects following the transaction, as the JV brought together four direct competitors in an industry where there were precedents of sanctioning proceedings for collusive conduct. This raised the risk that the new corporate structure would facilitate the exchange of sensitive information between the parent companies of the JV.
To address these concerns, the parties offered commitments based entirely on adopting compliance measures, specifically (i) the adoption of an internal competition protocol for the corporate governance of the JV, and (ii) the amendment of the shareholders agreement, integrating the content of the protocol into the JV’s governance structure.
The CNMC considered these commitments sufficient, effective, and proportionate to neutralize the identified risks.
Evolution toward a broader use of competition compliance
Compliance programs have traditionally played a role focused on risk prevention and modulating the consequences of competition infringements.
The CNMC’s Compliance Program Guide (June 10, 2020) established a demanding standard regarding the structure, content, and effectiveness of these programs for them to be considered effective. Its main value as a competition policy instrument lies in its potential to incentivize self-corrective measures and corporate compliance.
In recent years, there have been cases where compliance programs have been offered as commitments in sanctioning proceedings to finalize the investigation without a declaration of infringement and imposition of fines. In the ThyssenKrupp case from 2016, the CNMC accepted as a commitment that "All ThyssenKrupp employees and executives have the personal and corporate responsibility to adhere to internal compliance programs" —see case S/DC/0522/14 – ThyssenKrupp—. Likewise, regional authorities have also incorporated compliance programs as commitments in proceedings also finalized without imposition of fines. This is reflected in Resolution 9/2019 (Galician Bar Association), Resolution 3/2022 (tender for building renovation for Central Employment Office of Lugo 2), and Resolution 8/2024 (Transport to the Cíes Islands), where compliance programs were accepted for the termination of the respective cases and their supervision was strengthened.
Conclusion
In this context, the CNMC’s decision in case C/1586/25 – Formigons CAT JV marks a significant milestone by incorporating compliance programs into Spanish merger control practice. Until now, commitments typically consisted of structural or behavioral measures, specifically related to the company’s commercial activities in the market or with respect to third parties. In this regard, the introduction of a compliance program as the main remedy—in the form of an internal competition protocol for JV management—opens the door for compliance to play a more prominent role in merger control.
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