1) Is a merger control regulation in force?

Yes. The Spanish merger control rules are set out in the Law for the Defense of Competition (LDC) and the implementing Regulation for the Defense of Competition (RDC).

2) Which authorities enforce the merger control regulation?

Merger control is enforced by National Commission for Markets and Competition (CNMC). 

3) Relevant regulations and guidelines with links:

The merger control rules are contained primarily in the LDC, the RDC, and the Law for the creation of the National Commission for Markets and Competition and other communications. Links to the relevant legislation, guidelines and forms are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

Spanish law does not expressly exclude the application of the rules on anticompetitive conduct to mergers and in principle the prohibitions of anticompetitive agreements, abuse of dominance and unfair competition could be applied to merger transactions that have not been expressly authorized.

Ancillary restrictions that are notified to the CNMC and considered directly related and necessary for the transaction may be authorized together with the transaction itself. However, the CNMC will exclude from the authorization restrictions that it considers go beyond what may be considered ancillary. Such excluded restrictions must then be assessed in accordance with the general competition rules.

5) May an authority order a split-up of a business irrespective of a merger?

Yes, Article 53 (2) (b) of the LDC allows the CNMC to impose structural remedies irrespective of a merger. 

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

There are no other authorities with the power to prohibit a transaction on competition grounds, although it may be necessary to notify regulators and even obtain regulatory permissions in some sectors.

In this regard, transactions affecting banks, credit entities, investments funds and insurance undertakings are subject to authorization by the competent regulators. Likewise, foreign investments in activities directly related to National Defense require authorization by the Ministry of defense.  

Foreign investment control

General FDI Screening Mechanism

Up until March 2020, foreign direct investments were liberalized in Spain, with some exceptions. However, due to the health crisis caused by COVID-19, the Spanish government approved Royal Decree-Law 8/2020 (amended by the Royal Decree-Law 11/2020), suspending the liberalization regime under certain circumstances. Pursuant to it, closing of specific foreign investments requires prior authorization through EU-law based general FDI screening, regulated in Article 7 bis of Law 19/2003 (General FDI Screening Mechanism).

Level of control required to trigger FDI screening:

The current legal regime considers “foreign direct investments” to be those investments whereby an investor intends to acquire a stake of at least 10% in the share capital of a Spanish company or takes an active part in managing or controlling that company when the investor exercises a “decisive influence” over it. The term “decisive influence” is interpreted in light of the Spanish antitrust regulation, rather than according to the traditional notion of “control” from a corporate law perspective.

Who are considered foreign investors:

Foreign investors are defined as either

1. investors resident in a country outside the European Union (EU) and the European Free Trade Association (EFTA); or
2. investors that are resident in EU or EFTA States and whose ultimate beneficial ownership belongs to residents outside EU or EFTA States. For such purposes, an ultimate beneficial owner exists when a person or an entity holds, or ultimately has direct or indirect “control” of, more than 25% of the investor's capital or its voting rights, or through any other means, exercises direct or indirect “control” over the investor.

Furthermore, Royal Decree-Law 34/2020 has set forth an interim screening regime until 31 December 2024 (the “Interim Regime”). The Interim Regime also applies to investments from residents of EU or EFTA States (other than Spain) or by residents in Spain with an ultimate beneficial owner in an EU or EFTA State when the:

1. the investment is made in stock-listed companies registered in Spain, or when unlisted, if the value of the investment exceeds EUR 500 million; and
2. the target company operates in any of the below mentioned strategic sectors.

Types of investments covered by the FDI regime:

Foreign direct investments in Spain are authorization-based, subject to prior screening, depending on (i) the type of activity that the target business is involved in, or (ii) the investor's profile. The value of the investment has to exceed EUR 1 million for Non-EU/EFTA investors in order for the transaction to be screened under the General FDI Screening Mechanism.

An authorization is required when the investment is made in specific strategic sectors that affect public security, public order, or public health. More specifically, affected strategic sectors include: 

1. critical, physical or virtual infrastructures; land and real state;
2. critical technologies and dual-use goods;
3. the provision of fundamental inputs, in particular energy;
4. sectors with access to sensitive information, in particular personal data or with the capacity to control such information; and
5. media.

Regardless of the sector in which the investment is made, authorization is required where the investor: 

1. is controlled directly or indirectly by a third-country government;
2. has invested or participated in activities in sectors affecting the public security, public order or public health of another EU Member State; or
3. represents a serious risk owing to its engagement in criminal or unlawful activities that may affect public order, public security or public health in Spain.

Authorities and procedures:

Generally, authorization for foreign direct investments is granted by the Council of Ministers, except for transactions eligible for the simplified authorization procedure (i.e. those in which the value of the investment in Spain is between EUR 1 million and EUR 5 million), which is resolved by the General Directorate of International Trade and Investment (Dirección General de Comercio Internacional e Inversiones).

For the ordinary procedure, the legal term to issue a decision is six months from the formal filing, although the procedure can be suspended if additional information is required — therefore the deadline may be extended.

The investment will be deemed unauthorized if the relevant authority does not respond to the authorization request within the corresponding legal term. Nonetheless, the authorization may still be granted after the expiration of this term, which will likely be the case in complex transactions or in those that require commitments to be made by the investor. In any case, the expiration of the statutory term allows the investor to bring a court claim before Spanish courts.

Sanctions:

If an investment is made without the relevant authorization, it will be null and void, which means that the transaction will be invalid and without any legal effect until (and if) the required authorization is obtained.

Fines may be imposed on the acquirer from EUR 30,000 up to the total value of the transaction in Spain, as well as a public or private reprimand.

Defence Screening Mechanism

Pursuant to Article 11 of Royal Decree 664/1999, a sector-specific screening applies to activities directly related to Spanish National Defence. As for the General FDI Screening Mechanism, the legal term to authorize the transaction –which corresponds to the Council of Ministers– is six months from the formal filing.

There is no de minimis threshold for the Spanish Defence Screening Mechanism, except for investments in listed companies (sociedades cotizadas en Bolsa de Valores) which carry out these activities: the authorization will only be required for acquisitions by non-Spanish residents of more than 5% of the share capital of the Spanish company, or those which, without reaching this stake, allow the investor to form part, directly or indirectly, of its administrative body.

7) Are any parts of the territory exempted or covered by particular regulation?

No. 

Although regional governments have exclusive jurisdiction to investigate anticompetitive conduct whose effects are limited to their respective regions, the CNMC has sole jurisdiction to enforce the merger control rules, subject only to an obligation to consult the authority of any region that is particularly effected. (Note, however, that regional authorities may publish their own parallel assessment of notified transactions, but regional authorities may not prohibit a merger or impose conditions.)

8) Is merger filing mandatory or voluntary?

If a transaction meets one of the thresholds, a filing is mandatory (without any exceptions).

9) Is there a general definition of transactions subject to merger control?

Yes. The Spanish merger control rules apply to economic concentrations (in this guide generally referred to as “mergers”), which are defined in Article 7(1) LDC as situations where there is a stable change in the control of all or part of one or more undertakings as a result of:

1. the merger of two or more previously independent undertakings;
2. the acquisition by an undertaking of control over the whole or part of one or more undertakings; or
3. the creation of a joint venture and, in general, the acquisition of joint control over one or more undertakings, when they perform on a lasting basis the functions of an autonomous economic entity.

10) Is "change of control" of a business required?

Yes.

11) How is “control” defined?

According to Article 7(2) LDC, “control” results from rights or any other means that, having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking and, in particular by:

1. property rights or rights to use all or part of the assets of an undertaking,
2. contracts, rights or any other means that confer decisive influence on the composition, voting or decisions of the organs of the undertaking.

In this regard, in practice the CNMC defines control in accordance with the principles set out in the European Commission’s Consolidated Jurisdictional Notice.

12) Acquisition of a minority interest

The acquisition of a minority interest that enables shareholders to merely protect their financial interest but that does not result in a change of control is not sufficient to trigger a merger filing.

13) Joint ventures/joint control – which transactions constitute mergers?

Joint ventures and acquisitions of joint control are only considered as a merger when the joint venture or business over which joint control is acquired perform on a lasting basis the functions of an autonomous economic entity. 

In practice the CNMC analyzes “full functionality” in accordance with the principles set out in the European Commission’s Consolidated Jurisdictional Notice.

A joint venture that is not full function is not subject to merger control but may be scrutinized under the general competition rules. 

A notified joint venture that has as its object or effect the coordination of the market behaviour of independent undertakings will also be scrutinized under the general competition rules. 

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

The merger control rules apply to mergers in which:

1. the combined aggregate turnover in Spain of all the participants in the last financial year is more than EUR 240 million; and 
2. the aggregate turnover in Spain in the last financial year of each of at least two of the participants is more than EUR 60 million.

b) Market share thresholds

The merger control rules also apply to any merger that leads to the acquisition or increase of a share of 30% or more of a relevant product or service market in Spain or in a geographic market within Spain. 

However, the transaction is exempted from merger control if: the target’s turnover in Spain is less than EUR 10 million; and the participants do not have a combined or individual market share equal to or greater than 50% in any affected market in Spain or in a geographic market within Spain.

The market share threshold can be triggered by the target alone: specifically, if the target has a market share of 30% or more on a relevant market in Spain or within Spain (or, under the exception, 50% or more if its turnover in Spain was less than EUR 10 million). 

In principle, the market share threshold cannot be triggered by the acquirer alone. However, note that the de minimis exception may not apply if the acquirer has a market share of 50% or more in a market considered relevant even if there is no overlap.  

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to transactions in all sectors. Note, however, that turnover may be calculated differently in some sectors.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation and geographical allocation of turnover are contained in the RDC.

The relevant turnover to be taken into account is the net revenue from the sale of goods and/or services in the ordinary course of business in the last accounting year exclusive of bonifications and other sales rebates, value added taxes and other taxes directly related to the turnover. 

Turnover is calculated on the basis of the audited accounts of the most recent financial year of the participating undertakings and should include any undertakings controlled by each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies, excluding intra-group transactions.

Turnover must be adjusted to take account of any divestments or acquisitions of businesses after the end of the financial year that the turnover calculation is based on.

Generally, turnover from products and services sold to customers who are resident in Spain at the time of entering into the relevant agreement is considered Spanish turnover. 

In practice these rules are interpreted in accordance with the European Commission’s Consolidated Jurisdictional Notice.  

17) Special rules on calculation of turnover for particular businesses

There are special rules on calculation of turnover for investment funds, credit entities and other financial entities, and insurance undertakings. 

The turnover of investment funds is calculated as the sum of the turnover of the entities that manage the fund and the turnover of the companies controlled by all the investment funds managed by those management companies.

The turnover of credit institutions and other financial entities is calculated as the sum of the following forms of income received by the entity in Spain (as defined in Council Directive 86/635/EEC, of December 8, on the annual accounts and consolidated accounts of banks and other financial institutions, after deduction, as the case may be, of the Value Added Tax and other taxes directly related to said income):

• Interests and similar income; 
• Income from investments (either shares, participations or other variable income securities) including the shares in undertakings of the group; 
• Commissions charged; 
• Net benefits from financial operations; and
• Other operating results.

The turnover of insurance undertakings is calculated as the value of gross premiums issued.

18) Series of transactions that must be treated as one transaction

When two or more mergers consisting of the acquisition of a business or part of a business take place between the same parties within a two-year period, those mergers are considered a single merger that takes place on the date of the last such merger. 

19) Temporary change of control

Merger control only applies to mergers giving rise to a “stable” change of control. 

20) Special industries, owners or types of transactions

Article 7(3) LDC specifies that the following transactions are not considered mergers:

1. Redistribution of businesses or assets within an existing group;
2. The temporary acquisition by credit entities or insurance companies of shares for resale, as long as their normal activity is the transaction and negotiation of shares, they acquire those shares temporarily and the voting rights inherent to those shares are executed to maintain the value of the shares and not to determine the competitive behaviour of the companies;
3. Transactions carried out by a financial holding company (as defined in the EU Annual Accounts Directive), provided that the voting rights held by such a company are only exercised to retain the full value of the acquired undertaking and not to determine its competitive conduct; or
4. Acquisitions of control by a professional who has powers under applicable insolvency legislation to deal with and dispose of the undertaking.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. 

22) No overlap of activities of the parties

There is no exemption for transactions where there is no overlap, although the simplified procedure may be available.

23) Other exemptions from notification duty even if thresholds ARE met?

No.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

No, the CNMC will only handle a merger notification if the thresholds are met or if a referral from the European Commission allows it to handle the notification.

However, merging parties may voluntarily consult with the CNMC in order to determine whether a given transaction constitutes a merger or meets the thresholds for notification. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No.

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The European Commission may refer a merger or a part of a merger to the CNMC, at the request of the CNMC or of the parties concerned in accordance with EU merger control rules. In such a case, the CNMC may investigate the referred concentration even if the thresholds for merger notification in Spain are not met. 

28) Referral to another jurisdiction

The CNMC may refer a merger to the European Commission on its own initiative or at the request of the parties in accordance with EU merger control rules. 

There is no procedure for referral of mergers to other jurisdictions. 

29) May the merging parties request or oppose a referral decision?

The parties may request a referral to or from the European Commission in accordance with EU merger control rules.

The authorities do not require the consent of the parties in order to refer a transaction, although the parties are permitted to make observations opposing referrals both to the Commission and the CNMC. 

30) Stage of transaction when notification must be filed

The notification may be filed once an agreement or “project” exists. For these purposes, a “project or agreement” is considered to exist: 

• from the moment when the parties consent to carry out the transaction which gives rise to the merger and determine the form, the deadline and the conditions in which it will be carried out; 
• in case of takeover bids, provided that the board of directors of the offeror has agreed to make a takeover bid and its intention to present the offer has been announced; 
• in the case of mergers, when the relevant requirements for carrying out the merger are met under the relevant  company law rules. 

There is no deadline for filing, but a notifiable merger may not be implemented before the merger has been approved by the CNMC.

31) Pre-notification consultations

The LDC provides for the possibility of formal consultations in order to determine whether a given transaction constitutes a merger or meets the thresholds for notification. 

In addition, the CNMC encourages informal pre-notification consultations before notification, in particular in cases where the parties wish to make use of the short-form notification.

The length of the preliminary phase depends on the complexity of the case such as size, expected competition concerns, potential remedies. In contrast to the formal notification, pre-notification is not subject to any deadline. 

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

In general there are no special rules for timing of notifications in case of takeover bids or transactions on the stock exchange.

However, if parties to a public takeover bid for shares traded on Spanish stock exchanges wish to carry out the offer before receiving the authorization of the CNMC, they must notify within five days of announcing the bid. If they do so, they may close the offer prior to authorization, provided that they do not exercise the voting rights inherent to the acquired shares or exercises them based on a dispensation awarded by the authority or to safeguard the value of the investment.

33) Forms available for completing a notification

There are two forms available: one for simplified notification and one for full notification (Annexes II and III of the RDC).

The simplified notification may be used in the following cases:

1. If the undertakings concerned are not active on the same market or on vertically related markets.
2. If the shares of the undertakings concerned in the markets are of such limited importance that the transaction is unlikely to have any impact on competition. This is considered to be the case where: (i) the merging parties are active on the same market or markets but do not have a combined market share exceeding 15% in Spain, or are active on the same market in Spain with a combined share of between 15% and 30%, but the merger results in an increment of only 2% or less; or (ii) the merging parties are active on vertically connected markets and none of the parties have market shares exceeding 25% in Spain on those connected markets.
3. If the transaction consists of the acquisition of sole control of an undertaking by another that previously had joint control over it. 
4. If the transaction consists of the creation or acquisition of joint control in a joint venture that has no activities in Spain or activities considered “marginal”, which for these purposes means generating turnover of €6 million or less. 

Note, however, that the CNMC may always request a full notification, even if the conditions for simplified notification are present, and may do so at any time of the process, including after having accepted and declared a simplified notification complete.

For additional guidance on the use of the simplified notification see the CNMC’s Communication of October 21, 2015, regarding the cases where the simplified notification filing form set out in article 56 LDC applies (link in Section 3). 

It is also customary (and recommended) to submit a draft notification form in the pre-notification phase, even if it is a short form. The CNMC can ask the parties to use a standard form even if the merger qualifies for the simplified procedure.

34) Languages that may be applied in notifications and communication

The notification and communications with the CNMC should be made in Spanish.   

35) Documents that must be supplied with notification

The following documents must be supplied with the notification whether in the simplified or ordinary form:

1. A copy of management reports and audited annual accounts for the last financial year of the undertakings concerned and their parent companies, as the case may be.
2. A copy of the final or most recent version of the transaction agreements. If not in Spanish, the transaction agreements must be translated, and the CNMC may request a certified translation. 
3. In case of public bids, the bid documents in the form submitted to the Spanish stock exchange regulator or their equivalents in other jurisdictions.
4. Proof of payment of the filing fee.
5. Powers of attorney of any legal representative.
6. Copies of any relevant market analysis, reports or studies.
7. Copies of any cooperation agreements or similar referred to in the notification.
8. Copies of reports or documents explaining the transaction to management bodies, shareholders or investors and analysts.

36) Filing fees

(These amounts may be updated over time.)

37) Is implementation of the merger before approval prohibited?

Yes.

38) May the parties get permission to implement before approval?

Yes, the CNMC may lift the suspension of the implementation before approval. This only happens in exceptional cases and generally only at the end of first phase.

By way of exception, and as stated on topic 32, public takeover bids on the Spanish stock exchange may be implemented before approval from the CNMC has been obtained, provided that the buyer notifies within five days of announcing the bid and does not exercise the voting rights inherent to the acquired shares or exercises them based on a dispensation awarded by the authority or to safeguard the value of the investment. The bid will be conditional on the CNMC's clearance.

39) Due diligence and other preparatory steps

Spanish law does not include any detailed regulation or guidance in connection with preparatory steps. The wording of the prohibition (the concentration “must not be executed”) and the case law to date, which typically involves transactions which were completed or in which control was acquired prior to authorization, suggest that due diligence and other preparatory steps that do not contribute to a change of control will not be problematic from the point of view of the standstill obligation. 

40) Veto rights before closing and "Ordinary course of business" clauses

It is customary for the parties to include provisions governing the interim period between signing and closing in transaction agreements and in the vast majority of cases there has not been any problem. Nevertheless, parties should refrain from including any provisions that could be considered equivalent to allowing decisive influence over the commercial strategy of the target or could give rise to an exchange of sensitive commercial information.  

41) Implementation outside the jurisdiction before approval – "Carve out"

In principle it is not possible to “carve out” Spain so as to permit a transaction to close in other jurisdictions prior to the CNMC’s authorization. Moreover, even where the parties agree to two or more wholly separate transactions, if they take place within a two year time period they will be considered a single merger which must be notified to and authorized by the CNMC. 

42) Consequences of implementing without approval/permission

Implementation prior to approval is punishable with fines of up 5% of the parties’ worldwide turnover. 

In addition, the CNMC may require the parties to notify the transaction and will carry out a full review. If the CNMC considers that the merger gives rise to serious competition concerns, it may prohibit the transaction or condition its approval on remedies submitted by the parties or other conditions. If necessary, the CNMC may order the parties to break up the merged entity or take other measures necessary to restore efficient competition.

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

The CNMC will assess whether the merger will "impede the maintenance of effective competition in all or part of the national market".

For these purposes, the CNMC will take account of: 

1. the structure of the relevant markets (demand/supply),
2. the position of the undertakings concerned in the markets, their financial and economic strength,
3. the real or potential competition offered by firms inside or outside the national market,
4. the possible alternatives of suppliers and consumers, their access to sources of supply and to markets,
5. the existence of barriers to entry into the relevant markets,
6. the evolution of supply and demand of the products or services concerned,
7. the negotiating strength of the demand- or supply- side and its ability to counteract the position of the undertakings concerned in the affected markets, and 
8. the efficiencies derived from the merger. 

45) May any non-competition issues be considered?

Non-competition issues will not be considered by the CNMC. 

However, if Phase III is opened, the Council of Ministers may consider wider issues such as defense and national security, security or public health protection, freedom of goods or services within the national territory, environmental protection, promotion of research or technological development and protection of the sectorial regulation aims.

46) Special tests or criteria applicable for joint ventures

According to article 10 (2) LDC, the assessment for joint ventures is the same as for other mergers, but if the joint venture also has as its object or effect the coordination of the activities of its shareholders, it will also be assessed under the general prohibition against anticompetitive practices.

47) Decisions and remedies/commitments available

In first phase, the CNMC may:

1. Authorize the merger; 
2. Authorize subject to commitments submitted by the notifying parties; 
3. Open a detailed investigation in second phase; 
4. Refer the merger to the European Commission in accordance with EU merger control rules; or
5. Close the investigation without decision.

Commitments in first phase may take any form and can be either structural or behavioral. However, given the limitations on the first phase investigation (in which there is limited access to the file or third party participation) any remedies offered will need to be clear cut in order to result in an authorization. 

In second phase, the CNMC may:

1. Authorize the merger; 
2. Authorize subject to commitments submitted by the notifying parties; 
3. Authorize the merger subject to conditions different to those submitted by the parties; 
4. Prohibit the merger; or 
5. Close the investigation without decision.

Again, commitments in second phase may take any form and can be either structural or behavioral. In second phase the parties can expect any remedies to be rigorously analyzed and market tested. 

If a merger has already been implemented at the time it is subsequently prohibited by the CNMC, the CNMC may order the separation of the businesses or any other measure necessary to restore competition.

48) How and when will details about the merger be published?

The CNMC makes a public announcement when it has received a formal notification indicating the case number, the parties involved, the filing date, the sector involved, the type of control, and whether the operation is filed due to the market share or the turnover threshold.

The CNMC also makes a public announcement when a decision has been taken and generally publishes both the decision and the detailed report of the Directorate of Competition very shortly afterwards, subject to the elimination of any business secrets.

If the investigation is sent to second phase, then a detailed decision explaining the reasons for doing so may also be published, and third parties will have access to a non-confidential version of the case file.

49) Access to the file for the merging parties and third parties

The merging parties:

Access to the file is only possible in second phase. In second phase, the merging parties as well as other interested parties have a right to access to the file, which includes correspondence with third parties that the CNMC may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority may redact third parties’ confidential information, often including the identity of such third parties. There is no right of access to the authority’s internal documents and correspondence.

Third parties:

Interested third parties also have a right to access to the file in the second phase. The limitations of access to the file stated with respect to the merging parties also apply for third parties. 

50) Who can appeal and what may be appealed?

Both the undertakings concerned and interested parties can appeal decisions by the CNMC to the Audiencia Nacional, including conditions contained in an approval decision – even if they are based on commitments suggested by the parties themselves.

Decisions of the Council can be challenged before the National Court (within two months of the notification of the decision) and before the Spanish Supreme Court in cassation. In the case of government intervention (Phase III), the final decision is subject to judicial review exclusively by the Supreme Court.

Decisions of the Competition Directorate in merger proceedings can also be appealed to the CNMC Council. The parties must lodge the appeal within ten days of the decision.