Operational setting of the GCC

The new autonomic organizations for the defence of competition (the GCC and the GSDC) operate with a setting of decentralization, both from a communitary perspective, with increasing responsibility for the States, and from the Spanish one, due the distribution of competences between the State and the Autonomic Communities.

At the EU level, the recent (EC) Regulation 1/2003, from the Council, of 16 December 2002, relating to the application of regulations on competition envisaged in Articles 81 and 82 EC (formerly Articles 85 and 86 of the EC Treaty), brings the task of Modernizing the Communitary Competition Law, initiated at end of the 1990s, to a conclusion. Among the innovations of these Regulations worthy of mention, among others, is the substitution of the centralize application of rules relative to Articles 81 and 82 by another one in which competences lie with those organizations dealing with competition with Member states and the national jurisdictional bodies.

In Spain, the basic Law in the setting of competition is Law 16/1989 (17 July) for the Defence of Competition. In principle, this Law assigned executive competences exclusively to the organizations of the Central Administration: the Defence Court and the Service for the Defence of Competition. Nevertheless, this assignation of competences was modified by Ruling 208/1999 of the Constitutional Court, which recognized executive functions for the Autonomous Communities in the matter of competition. With this recognition, the aforementioned resolution paved the way for the decentralization of the Competition policy in Spain.

Sentence 208/1999 (11 November) of the Constitutional Court effectively declared the clause ‘all or in part of the national market’ which is underlying either expressly or implicitly in various Articles of Law 16/1989 (17 July) concerning the defence of competition, to be unconstitutional, and it recognized that Autonomous Communities with competences in internal commerce could have certain executive competences in the matter of the defence of competition within their territory.

The appearance of this sentence gave rise to an important regulationary development. Firstly, Law 1/2002 (21 February) for the Coordination of the Competences of the State and Autonomous Communities on the Matter of the Defence of Competition was promulgated, establishing the framework of this activity for the Autonomous Communities. Subsequently, the autonomic governments proceeded to create their own organizations for the defence of competition. To date, Autonomic Competition Courts have been set up in Catalonia, Galicia, the Community of Madrid, the Basque Country, Extremadura, Aragón and Castilla-León.

With regard to the distribution of competences among the different organizations applying anti-trust regulations for the defence of competition that exist in Spain, the aforementioned Law 1/2002 (21 February) assigns competences to bodies of the Central Administration when conduct that is detrimental to competition alters or may alter free competition in a supra-autonomic setting, or in the entire national market. In Point 3 of the same article, the Law states that the Autonomous Communities shall assume responsibility when those types of conduct that may distort competition alter or may alter free competition in the setting of the respective Autonomous Community, without affecting an area larger than the Autonomous Community or the entire State. Similarly, the Law establishes mechanisms for the exchange of information and even for the resolution of conflicts in the case of disagreements between organizations over a given investigation.

The Galician Competition Court was created by Law 6/2004 (12 July), which regulates organizations for the defence of competition in the Autonomous Community of Galicia. This Law establishes two bodies for the defence of competition, following the model hitherto applied by the General State Administration. On one hand, the the Galician Competition Court, an autonomous organization of an administrative nature; and on the other, the Galician Service for the Defence of Competition, which is attached to the Autonomic Economic and Finance Department as a sub-directorate general.

The organic separation of The GCC and The GSDC is characteristic of disciplinary proceeding in the Spanish legal code. Here, the Service is responsible for the task of scrutinizing proceedings, while the Court is responsible for the resolution, including the possibility of imposing sanctions, reporting and issuing proposals.