In its recent judgments dated 1 October 2019 (in connection with appeals 5280/2018 and 5244/2018), the Spanish Supreme Court (the “SSC”) has found that the legal representatives and members of the management boards of undertakings that infringe competition rules need not have a decisive or significant role in the infringement; they can be penalised for their “passive behaviour” or inaction.
Specifically, the SSC concluded that the application of article 63.2 of the Spanish Competition Law 15/2007, of 3 July (Ley 15/2007, de 3 de julio, de Defensa de la Competencia, or “LDC”), which establishes the possibility of imposing penalties on officers or legal representatives of offending undertakings, does not limit the application of that provision to cases where the involvement of those officers or legal representatives has been decisive in passing the anti-competitive resolution or decision. According to the SSC, article 63.2 LDC does not exclude less significant involvement, including passive conduct such as by attending meetings where infringing decisions or resolutions were passed without expressly opposing them.
The SSC thus rejects the position taken up to now by Spain’s National Court, the Audiencia Nacional, which required that the legal representatives or officers of undertakings that infringe competition rules have a decisive or significant involvement in the infringement – equivalent to a co-offender – for penalties to be imposed on them pursuant to article 63.2 LDC.
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