The National Court has overturned a €46.4 million fine imposed by the National Markets and Competition Commission (CNMC) on security companies Prosegur and Loomis. The Court considers that the panel, chaired by Cani Fernández, has failed to demonstrate the existence of a joint plan and concerted practice between the two companies to share the cash handling market.
The CNMC sanction came in 2016. Specifically, it gave 39.4 million euros to Prosegur and seven million to Loomis for sharing the market, agreeing on prices and exchanging sensitive business information for seven years (between 2008 and 2015) in the business from transferring the collection and transportation of cash, known in the industry as Cash. Now the contentious administrative chamber of the court has upheld Prosegur’s appeal, believing that there is no documentary evidence in the administrative file to show that the behavior of the sanctioned women was due to a plan previously agreed between the two.
The Court considers that Competition bases its conclusions on “assumptions and interpretations on the basis of evidence which bears no direct relation to the fact it seeks to prove”, since the applicant has provided “reasonable alternative explanations for each of this evidence”. “ has offered legal norms. Those statements, the ruling said, should have prompted CNMC to be “more sophisticated” in its rationale rejecting these alternative justifications.
“The complainant’s conduct could be protected for reasons of resource optimization and rationalization of spending. Reasonable alternative explanations which justify the complainant’s conduct and which, moreover, have legal protections, leading this court to conclude that the evidence of concerted action relied upon by CNMC cannot constitute evidence of the allegation.” that’s the verdict. In this way, the court concludes that the competition has not proved that the alleged conducts were carried out in the execution of a common and coordinated plan or taking advantage of the same opportunity, which implies a complementary link between the alleged companies.
On the contrary, the Chamber understands that the panel, chaired by Fernández, justified the existence of this concerted plan in a “voluntary and artificial” way, citing blatant statements contained in some internal emails sent by employees of the company were collected. According to the judgment, however, there is no evidence of an element of cohesion or a complementary link between the actions of the accused companies to embed these behaviors in achieving a common goal of the agreed plan.
The competition began investigating after receiving an anonymous complaint. And he considered that these companies had committed a single and continuous violation of Article 1 of Law 15/2007 on the Protection of Competition and Article 101 of the Treaty on the Functioning of the European Union.
The activity that both companies carry out has only been carried out by four companies in Spain, due to its complexity and sensitivity, although Prosegur and Loomis were the only ones implemented throughout the peninsula. The value logistics business includes the transport of money in vans, storage in company buildings and cash management.