El tratamiento de las restricciones públicas a la competencia en España (Marcos, 2007)

El doctor Francisco Marcos (Director del Servicio de Defensa de la Competencia, Tribunal de Defensa de la Competencia de la Comunidad de Madrid / Instituto de Empresa Business School) ha subido al SSRN un documento sobre El tratamiento de las restricciones públicas a la competencia en la legislación de España. Elensayo contiene un análisis pormenorizado de la reforma introducida por la Ley 15/2007 de Defensa de la Competencia sobre esta materia.

Abajo transcribo los datos pertinentes en Inglés (aunque advierto que el documento está en idioma Castellano):

Title: "State Action Doctrine in Spain: Treatment of State Anticompetitive Restrictions"

Abstract: The exemption of application of antitrust prohibitions when they are introduced in legislative rules is established in the new Defence Competition Act 15/2007, of July 3rd 2007, in similar terms to those contained of the prior Defence Competition Act 16/1989. The drafting of section 4 of Defence Competition Act 15/2007 improves the technical quality of its predecessor, having extended its coverage to all prohibitions of restrictive conducts of competition, including abuse of dominant position and falsification of free competition through unfair practices. Besides, it excludes from its coverage all anticompetitive conducts that are not contained or foreseen in legislative rules or that stem from the performance of the public Administration, as well as the anticompetitive actions of the state-owned companies lacking legislative support.However, section 4 contains an inadequate and unnecessary reference to the application of the Community Law (which was first introduced in the 1999 reform of the Defence Competition Act) that, taken to his its last consequences, questions the theory of the "double barrier" and the own existence and sense of the Spanish legislation of Defence competition.From another perspective the paper underlines how the new Defence Competition Acts sets the foundations for correcting the mistakes committed in the previous practice of the Defence Competition Court in its struggle against the administrative rules and acts that, without legal coverage, introduced or contained restrictions to the competition. Nowadays the National Competition Commission and the corresponding regional authorities cannot un-apply or declare the nullity of these acts and bylaws themselves but the possibility of challenging them before the competent jurisdiction is given (section 13.2). Keywords: Competition Defence, Public restrictions to competition, antitrust prohibitions, legal backing, administrative act

JEL Classifications: K21, L44