Merger Control and Competition Law Compliance Programmes: The Recent Clearance Decision of the Spanish Competition Authority in C/1586/25 Formigons.Cat JV

The Spanish Competition Authority (CNMC) has approved the creation of a joint venture for the manufacture and commercialisation of ready-mix concrete in phase I, subject to commitments (C/1586/25 Ribalta Pujol/Fiasa/Calaf Grup/Formigons.Cat JV on October 1^st 2025). This case is particularly noteworthy because, for the first time, the CNMC has accepted the implementation of a competition law compliance programme as a commitment for the clearance of a merger.

Competition law compliance programmes are becoming increasingly relevant in Spain. The CNMC published its Antitrust Compliance Programmes Guidelines (the Guidelines) in 2020. The Guidelines establish the criteria that must be met in order for a competition law compliance programme to be considered effective. Implementing effective competition law compliance programmes allows companies involved in infringement proceedings to avoid the exclusion from public procurement procedures and/or to obtain reduction in fines. In December 2025, the CNMC launched a public consultation with a view to updating its Guidelines.

Moreover, in June 2023 the CNMC adopted the Communication 1/2023 setting out the criteria to determine the scope and duration of the exclusion from public procurement procedures. In this Communication, the CNMC considers that the implementation of an effective competition law compliance programme is equivalent to adopting appropriate technical, organisational and personnel measures sufficient to prevent further misconduct in the sense of the Spanish Procurement Act (which transposes the EU Procurement Directives), thereby allowing companies to avoid the exclusion from public procurement procedures.

The aim of this post is to explain the significance of the recent decision in Case C/1586/25 Formigons.Cat JV in the context of the CNMC’s assessment of competition law compliance programmes. To this end, it will first provide a brief overview of how the CNMC and the Spanish regional competition authorities have evaluated competition law compliance programmes.

Assessment of competition law compliance programmes by competition authorities in Spain

The decisional practice of the CNMC

The CNMC has assessed competition law compliance programmes both in infringement proceedings and in commitment decisions (resoluciones de terminación convencional1) before even publishing its Guidelines in June 2020 (see, for instance, the CNMC decisions in S/0482/13 Fabricantes de Automóviles, S/DC/0522/14 Thyssenkrupp, S/DC/0544/15 Mudanzas Internacionales, S/DC/0557/15 Nokia, S/DC/0565/15, Licitaciones informáticas and S/DC/0612/17, Montaje y Mantenimiento Industrial).

In Thyssenkrupp, the CNMC brought the infringement proceeding to an end by accepting commitments, one of which required all employees, including management, to comply with the company´s compliance policies.

The CNMC Guidelines, issued in June 2020, set out seven criteria to be taken into account when examining competition law compliance programmes. These criteria are: (i) the involvement of the company´s management bodies and/or top executives; (ii) effective training; (iii) the existence of a reporting channel; (iv) the independence and autonomy of the compliance officer; (v) the identification of risks and the design of protocols or oversight mechanisms; (vi) the design of an internal procedure for managing reports and detecting infringements and; (vii) the design of a transparent and effective disciplinary system.

Since the publication of the Guidelines, companies have become increasingly aware of the importance of implementing effective competition law compliance programmes in order to obtain fine reductions and/or to avoid the exclusion from public procurement procedures. The CNMC has assessed numerous compliance programmes since June 2020, (i.e., S/DC/0627/18 Consultoras, S/0013/19 Conservación de Carreteras, S/0025/19 Gestión de Archivos, S/DC/0614/17 Seguridad y Comunicaciones Ferroviarias, S/0021/20 Obra Civil 2, S/0026/19 Merck Sharp Dome S.A., S/0008/21 Licitaciones Material Militar and S/0016/21 Suministro de Alimentos).

To date, Consultoras is the sole case in which the CNMC considered that a competition law compliance programme met the requirements established in the Guidelines so as to justify a reduction in the fine. In addition, as a result of the implementation of the compliance programme, the company was also exempted from being held to an exclusion from public procurement procedures. In Licitaciones Material Militar, the CNMC allowed certain companies to submit updated versions of their compliance programmes after issuing the infringement decision. The CNMC assessed these new versions of the compliance programmes and decided not to impose on two companies under investigation the exclusion from public procurement procedures (see the decisions of the CNMC in VS/0008/21 Licitaciones Material Militar and VS/0008/21 Licitaciones Material Militar). These companies did not, however, benefit from a reduction in the fine imposed on the final decision.

Competition law compliance programmes implemented by companies have also been an element taken into consideration by the CNMC at the preliminary investigation stage. In S/0045/20 Droguería, perfumería y parafarmacia, the CNMC decided not to open an infringement proceeding, inter alia, because the company under investigation conducted specific training sessions in competition law and had compulsory materials on competition law available to employees.

In conclusion, the decisional practice of the CNMC shows that competition law compliance programmes, if effective, may allow companies to benefit from a fine reduction and/or to avoid the exclusion from public procurement procedures. They may also be taken into consideration as a factor justifying the decision not to open infringement proceedings or as a suitable commitment in commitment decisions.

The decisional practice of Spanish regional competition authorities

Regional competition authorities such as the Catalan Competition Authority, the Galician Competition Authority, and the Andalusian Competition Authority have also examined competition law compliance programmes in infringement proceedings (see, inter alia, the decisions of the Andalusian Competition Authority in S/03/2025 Contratación TAC SAS and S/04/2023 Transporte Escolar Málaga, the decisions of the Catalan Competition Authority in cases 108/2020 Contractació pública de serveis d’organització d’esdeveniments, 100/2018Aerobús and 102/2019 Aerobús 2, and the decision of the Galician Competition Authority in S 8/2021 Licitación servicios limpieza).

Likewise, the Galician Competition Authority, the Andalusian Competition Authority and the Basque Competition Authority have accepted competition law compliance programmes submitted by companies as commitments (see, inter alia, the decision of the Andalusian Competition Authority in S/03/2010 Afepancor, the decisions of the Galician Competition Authority in S 5/2016 Arquitectos de Galicia, S 4/2020 Licitación rehabilitación oficina central de empleo de Lugo 2, S 18/2020 Consejo Gallego de Colegios Veterinarios and S 15/2016 Transporte de Viajeros a las Islas Cíes, and the decision of the Basque Competition Authority in case 516-SAN-2021 Publicidad Ayuntamiento Bilbao).

It is therefore apparent that, like the CNMC, the regional competition authorities take into account the implementation of competition law compliance programmes both in infringement proceedings and commitment decisions.

The implementation of a competition law compliance programme as a commitment in the clearance decision of the CNMC in C/1586/25 Formigons.Cat JV

The transaction consisted of the acquisition of joint control by Ribalta Pujol, Fiasa, Calaf Grup and Gualtosal over the joint venture Formigons.Cat. The new joint venture would manufacture and commercialise ready-mix concrete in a specific area of Catalonia through the joint management and operation of 15 production facilities.

The joint venture would be active in the manufacturing and commercialisation market, which is vertically related to the grey cement production and commercialisation market and the aggregates extraction and commercialisation market. For this reason, the CNMC identified three relevant product markets: (i) manufacturing and commercialisation of ready-mix concrete market, (ii) grey cement manufacturing and commercialisation market; and (iii) aggregates extraction and commercialisation market.

The notifying parties considered that the produced-ready mix concrete is used within a radius of 45 minutes’ transport. However, the CNMC stated that the relevant geographic market for the manufacturing and commercialisation of ready-mix concrete could be left open..

The assessment of the transaction without commitments by the CNMC was that there would be some horizontal overlaps in certain influence areas in the regions of Barcelona and Lleida. However, the CNMC specified that in the areas where horizontal overlaps occurred there were enough competitors (between 2 and 5) to exert competitive pressure on the joint venture.

Likewise, the CNMC noted that the transaction did not give rise to portfolio effects. The notifying parties also argued that the transaction would generate efficiencies, such as the optimisation of logistic routes and a reduction of transport costs.

Despite the above, the CNMC concluded that the creation of a joint venture between four competitors within the same relevant geographic area, in a market characterised by several past infringement proceedings, raised concerns. In particular, the CNMC stated that the joint venture could be used as a platform to exchange sensitive information between competitors active in the concrete market, and other related markets, where certain parent companies of the joint venture operate, thereby giving rise to a risk of coordinated effects.

To mitigate the risks identified by the CNMC, the notifying parties submitted commitments. The first commitment was the approval and implementation of a Competition Law Compliance Protocol (Protocol) for the corporate management of the joint venture. The second commitment was to amend the Shareholders’ Agreement so as to incorporate the content of the Protocol.

The approval of the Competition Law Protocol

The parties committed to the approval of the Protocol by the Board of the joint venture either at the first board meeting or, alternatively, within 20 working days after the clearance.

The aim of this Protocol is to guarantee (i) that the joint venture acts autonomously and independently in the market; (ii) that the parent companies of the parties involved in the joint venture do not share any sensitive information through the joint venture; and (iii) that there is an operative framework which allows the monitoring of the Board of the joint venture with aggregated and non-confidential information.

The Protocol clearly distinguishes the functions of the Board of the joint venture, composed of a member appointed by each partner, and the Management Body, which is led by the General Manager.

The main elements of the Protocol are the following:

-        It classifies information as either sensitive/confidential or general/aggregated. Sensitive and confidential information may only be accessed by the Management Body, whereas only general and aggregated information may be presented to the Board.

-        It sets out a code of conduct for the Board and the Management Body. It also governs the joint venture´s interactions with the parent companies, including monitoring mechanisms and the imposition of confidentiality clauses on Board members.

-        It specifies (i) the functions of the Management Body in the daily execution of the competition law compliance programme, (ii) the monitoring role of the Board, and (iii) the functions of the Secretary in ensuring the correct enforcement of the Protocol.

-        It includes an internal procedure to verify potential breaches of its provisions or of competition law. The Board ultimately decides on the application of sanctions.

-        It applies from the date of its approval and shall be binding upon all Board members, executives and staff with access to confidential information. It remains in force for as long as the joint venture is active in the market, unless a substantial change in circumstances occurs.

-        Any amendment or update requires prior approval by the CNMC.

The CNMC considered that the content of the Protocol minimised the identified risks of information exchange and coordination between the parent companies of the parties involved in the joint venture. This risk mitigation results from the adoption of the Protocol which regulates the internal functioning of the joint venture. As previously indicated, the CNMC highlighted that the Protocol is binding on all Board members, executives, and staff with access to confidential information.

The CNMC also noted that the Protocol shall remain in force throughout the entire life of the joint venture, unless the circumstances change materially. The CNMC must validate the amendments of the Protocol, thereby ensuring the continued effectiveness of the commitment.

The CNMC concluded that the commitment was effective, proportionate, and sufficient to address the identified competition law risks.

The amendment of the Shareholders’ Agreement

The parties committed to approving and executing a public amendment of the Shareholders’ Agreement to include the Protocol. It contained all the measures and safeguards adopted to prevent the exchange of confidential and sensitive information between the parties in relation to markets where they are currently competing or may compete in the future.

This commitment shall remain in force for as long as there are overlaps between any of the parties of the joint venture and the joint venture itself, unless the CNMC decides otherwise.

The CNMC reached the conclusion that this commitment was effective, proportionate and sufficient to address the identified competition law risks.

Conclusion

The implementation of a competition law compliance programme is a factor taken into account by both the CNMC and regional competition authorities in infringement proceedings. In certain cases, companies may benefit from a fine reductions and/or avoid the exclusion from public procurement procedures, while in other cases the implementation of a compliance programme may be accepted as a commitment in commitment decisions.

The recent launch of a public consultation to update the 2020 Guidelines demonstrates the CNMC’s intention to promote the implementation of compliance programmes across all types of companies in Spain.

However, the CNMC has so far applied a strict approach when assessing competition law compliance programmes under the Guidelines. To date, Consultoras and Licitaciones Material Militar are the only cases in which the CNMC has found the submitted compliance programmes to be effective. The mere formal implementation of a compliance programme or any improvement of a programme does not automatically entitle companies to a fine reduction or to avoiding exclusion from public procurement procedures. Companies must provide convincing evidence of the programme’s effectiveness.

The clearance decision in C/1586/25 Formigons.Cat JV constitutes a landmark in Spanish merger control, as it is the first time the CNMC has accepted a competition law compliance programme as a commitment to authorise a merger. According to the CNMC, the programme implemented establishes clear safeguards to avoid the information exchange between the parent companies.

In the light of this precedent, it is likely that the CNMC will accept the implementation of effective competition law compliance programmes to address potential competition concerns in future merger control assessments.

• 1It is a mechanism used by the Spanish competition authorities to bring an investigation to a close without a formal finding of infringement or the imposition of a fine.