The CNMC adopts its first decision prohibiting a concentration

The National Commission on Markets and Competition (CNMC) has prohibited the concentration involving the Institut de Radiofarmacia Aplicada de Barcelona ("IRAB") and Curium Pharma Holding Spain ("Curium") on the grounds that the transaction would pose a serious obstacle to effective competition in two markets related to oncological imaging in northeastern Spain (C/1501/24,  CURIUM/IRAB).

First prohibition decision by the CNMC

This is the first time that the CNMC has adopted a formal decision prohibiting a concentration since its constitution twelve years ago, as well as since the entry into force of the current Law 15/2007, on the Defense of Competition (Spanish Competition Act). The decision concludes that the transaction would significantly impede effective competition in the markets for the supply of radiopharmaceuticals for the performance of positron emission tomography ("PET") and contract manufacturing services ("CMO") of such products, in northeastern Spain.

On 17 October 2024, Curium, a company active in the manufacture and marketing of PET radiopharmaceuticals, notified the CNMC of its intention to acquire sole control of IRAB, an innovation and development centre operating in the same markets. In view of the potential serious competition concerns, the CNMC opened an in-depth (Phase II) investigation on 7 February 2025.

Following its assessment, the CNMC concluded that no remedy could effectively address the competition risks identified and therefore, on 6 October, adopted its decision prohibiting the aforementioned concentration.

Assessment underpinning the prohibition

The CNMC noted that the affected markets already exhibited a high degree of concentration before the transaction: only three undertakings were capable of producing PET radiopharmaceuticals using a cyclotron (particle accelerator used in the production of these radiopharmaceuticals), of which two were the merging parties themselves. These markets are further characterized by significant barriers to entry, mainly due to the high investment and installation costs of the cyclotron, estimated between 2 and 7 million euros.

Considering the above, the CNMC found that the concentration would likely have resulted in higher prices and reduced choice for hospitals and diagnostic centers, and increased the risk of foreclosure due to the loss of the only operator with an independent cyclotron offering third-party manufacturing services. According to the CNMC, the transaction would have further consolidated the supply in the hands of the incumbent operators, resulting in combined market shares exceeding 90% in the manufacture and marketing of certain PET tracers (PSMAs), and significantly increasing the likelihood of coordinated effects between the two remaining operators.

Curium offered several behavioral commitments during the procedure, including continued production (and not commercialization) of IRAB’s PSMA under equivalent conditions for a limited period, an increase in IRAB’s cyclotron capacity, and the offer of CMO services under standard and competitive terms for new customers. However, the CNMC considered these commitments to be of very limited duration and insufficient to address the competition concerns, which would be of a structural nature.

In addition, given the impact of the transaction in Catalonia, and at the request of the CNMC, the ACCO issued a non-binding report, supporting the CNMC’s assessment on the significant risks that the transaction would pose for effective competition in Catalonia. The ACCO also noted that the proposed behavioral commitments were inadequate to solve the structural problems, preserve IRAB’s independence as a CMO and to prevent coordinated effects, portfolio effects, and adverse impacts on innovation.

With regard to the possible conditions, the CNMC concluded after market testing that there was no effective or implementable remedy capable of removing the identified competition concerns.

Implications: a turning point in Spanish merger control

This decision confirms a trend towards a more stringent approach by the CNMC in merger control. Until now, the authority has shown a certain flexibility in assessing complex mergers, often accepting behavioral commitments proposed by the notifying parties, without prejudice to the legal possibility of imposing conditions.

However, the CNMC has been taking gradual steps towards stricter merger control enforcement. On the one hand, recent years have seen an increase in the number of transactions cleared subject to commitments and in the initiation of Phase II proceedings. In fact, a total of four concentrations are currently under analysis in the second phase, without prejudice to those that have been resolved throughout the year. On the other hand, the CNMC has exercised its legal power to impose conditions in one case.

This prohibition decision underscores the importance for companies planning notifiable concentrations in Spain to identify potential competition concerns early, through a substantive analysis that is as complete as possible. In the current context, an early remedy design and engaging in pre-notification discussions with the authority becomes essential to ensure a transaction’s viability.