There will be no second consecutive penalty for Masmóvil. The council of the National Commission for Markets and Competition (CNMC) has decided on the proposal for a fine of 1.5 million euros raised by the Directorate of Competition and archive of the file. He understands that the existence of an obstruction practice during the agency’s investigation into the acquisition of the Ahí+ group is not sufficiently proven. Months ago, it did impose the payment of an identical amount for a serious infringement by not having formally communicated this transaction as required.
In March 2023, several months after that first fine was imposed, the Competition Directorate started previous proceedings in order to determine the existence of indices that justified the opening of a sanction procedure against Másmóvil for breach of the duty to collaborate with the CNMC, as reflected in the resolution dated at the end of last June and consulted by La Información. In May, two months later, he submitted a proposal to the Competition Chamber to consider an extra payment of another 1.5 million euros. It pointed out that the information provided by the Spanish operator “is incomplete, erroneous and easily available and verifiable” by Másmóvil itself.
The Council of the Competition Chamber, headed by the president of the organization, Cani Fernández, shared the first assessment with the Competition Directorate in relation to the independence of this potential infringement (for responding incompletely to the five information requirements executed between 2021 and 2022) and the one consisting of executing a purchase without prior notification -for which he already demanded the payment of another 1.5 million euros-. But in this case it is understood that there is a particular circumstance: it cannot be ignored that, compared to the power to demand collaboration in the CNMC investigations, there is also a duty of the administration not to require data that is already in its possession. .
As the council insists, the data requested from Másmóvil through the different requirements by the technicians, in particular those referring to the existence of visible numbering for the company Alma Telecom, were already recorded in the Public Registry managed by the CNMC itself at that he was able to access the Competition Directorate after verifying the number of companies that had been part of the purchase. “The Directorate itself obtained the required data and even so continued to request the information from Másmóvil,” he adds.
The CNMC council verified that the Competition Directorate obtained the required data “and still continued to request the information from Másmóvil”
But these arguments are not the only ones. From the Chamber they point out that, according to the Competition Law, the imposition of a sanction for these modalities of lack of collaboration does not imply, according to previous sentences of the National Court, that the obstruction of the authority “is of such an entity that completely prevents or thwarts it.” The importance that the company’s actions may have in relation to the result of the inspection should be assessed. And in this case, it cannot be appreciated that the importance of the Obstruction is of such an entity that it justifies the imposition of a sanction. Therefore, it discards the proposal of its Competition Department and archives the procedure as requested by Másmóvil.
As the CNMC makes clear in its resolution, this sanction that is now filed is independent of the one imposed in January 2023 on Xfera Móviles, a subsidiary of the fourth telco with which the Yoigo brand operates. At that time, the body’s council did conclude that the group had not formally communicated the acquisition of Ahi+ despite the fact that it had a legal obligation to do so because it exceeded the size thresholds. In January 2021, the Competition Directorate became aware of the transactions. He opened prior proceedings and demanded in March 2022 that he formally notify him. Last December he imposed the payment of 1.5 million.
relevant purchase
The purchase of all the shares of the fiber operator of communities such as Andalusia or Valencia took place in December 2020 for a price of 116 million euros. The negotiation of the transaction was already especially tense. Both parties appeared a year ago now in cross-suits alleging breaches of contract. From the side of José Carlos Oya, founder of Ahí+ who has just launched another operator called 7Play, the return of 100% of the company and compensation through compensation was demanded.
That of Ahí+ is one of the relevant purchases made in recent years, although not the most relevant. The teleco directed by Meinrad Spenger began a race to gain size more than five years ago. First it was done with Pepephone and later with Yoigo for 158 and 612 million euros, respectively. Later he made other purchases such as Lycamobile for more than 300 million. Lastly, the most relevant operation was the Takeover Offer (OPA) for 100% of Euskaltel for almost 2,000 million.
