Of all the fundamental rights enshrined in the Spanish Constitution, one of the most precious to the competition lawyer is the right to the presumption of innocence provided for in the second paragraph of Article 24.
That right has been repeatedly found, by both the Supreme Court and the Constitutional Court, to require a competition authority, when imposing fines after an administrative investigation, to provide sufficient evidence to prove the existence of the infringement. Moreover, the traditional case law required them to do so ‘beyond a reasonable doubt’, even if, in recent cases, the Courts have appeared to migrate towards the somewhat lesser standard of a ‘firm conviction’ that the infringement took place.
That burden and standard of proof, in turn, is an important threshold for the judicial review of the ever-growing number of decisions imposing antitrust fines For the past decade, particularly since the 2013 remodelling of the Spanish Competition Authority and the creation of the current Spanish Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia or "CNMC"), much of the caselaw of Spanish Courts has been focused on leniency cases, with abundant evidence or otherwise, and on procedural controversies.
As a result, there has been limited guidance from the courts on the assessment of the evidence put forward and required to meet the threshold required.
Therefore, while the standard of proof for competition authorities to establish an antitrust infringement was relatively clear, there was limited practical guidance as to the nature and amount of evidence required or the probative value of the evidence often put forward by the competition authorities, including, for example, the interpretation given to internal communications, handwritten notes or even Excel files So, it is encouraging and extremely helpful for both practitioners and the competition authorities that in a series of judgments issued in 2021, decisions of the CNMC have not only been annulled, but have been annulled following a thorough review of the evidence. This article aims to describe these cases and their lessons for authorities and future appellants.
Competition Law International, Vol. 18 No. 1, June 2022. International Bar Association (IBA) - Antitrust Section.