Failing to deter: analysing Spain’s ineffective antitrust measures and cartelist activities

This paper critically examines the effectiveness of Spain’s antitrust measures in deterring cartel behaviour. Despite aligning with EU standards, Spain’s penalties for anticompetitive practices have proven ineffective. An analysis of sanctions imposed reveals that both the 2009 Communication and the post-2015 framework fail to deter cartel formation effectively. Corporate fines often do not exceed the expected benefits of collusion, undermining their deterrent function. While increasing fines might enhance effectiveness, such measures risk unintended consequences, including firm insolvency and reduced market competition. Therefore, implementing complementary sanctions could serve as a valuable addition. While Spain’s enforcement system already includes fines for individuals and bidder exclusion, these measures face significant challenges. The lack of detailed definitions and the absence of clear guidelines on the subjects considered liable make imposing these fines more difficult. Additionally, the bidder exclusion mechanism was not properly transposed into Spanish legislation, leading to its temporary suspension by the National High Court pending resolution of appeals.