The New Spanish Super-Regulator
14/02/13
Spanish Congress is debating a draft bill to merge seven sector regulators, three of which have yet to be created, with the national competition authority (CNC). The new entity would merge the National Energy Commission (CNE); the Telecommunications Market Commission (CMT); the Railway Regulatory Committee (CRF); the National Commission for the Postal Sector (CNSP); the future Commission for the Economic Regulation of Airports; the future National Gaming Commission; and the future State Council for Audiovisual Media. Its name is to be National Markets and Competition Commission (CNMC).
On 29 November 2012, the European Commission’s Directorates-General for Competition; Energy; Telecommunications; and Economy and Finance told the Spanish Government how concerned they are about the intended merger of the CNE and the CMT with the CNC. Two weeks earlier, the Body of European Regulators for Electronic Communications (BEREC) had expressed in a statement its ‘great disquiet‘ over ‘the emergence in some Member States of initiatives which would have the effect of transferring responsibility for some regulatory tasks away from NRAs to become direct Government functions.’
Four of the five existing authorities affected officially stated their criticism of the first draft (CMT; CNC; CNE; and CNSP), which the current version does not address. As later would BEREC and the European Commission, these authorities were most worried about transferring competencies to Government departments. Moreover, the first draft envisaged transferring to the latter ‘any competencies not expressly attributed to the CNMC’ by the new law (Third additional provision). The draft now in Congress at least includes the CNMC’s residual competence (Fifth additional provision).
The Government allegedly aims at (i) increasing legal certainty by harmonising regulatory criteria; (ii) improving supervision quality by adapting to technical progress; and (iii) saving by scrapping double posts. Let us assume that the former two aims bear relation to the merger, although the Spanish Council of State actually sees a problem of ‘legal uncertainty.’ At the end of the day, only the third aim seems to require the merger. Yet do hypothetical savings justify making regulators less independent? To date, the Spanish regulators’ good work was key to free competition on markets featuring very large players, some of which are historically inclined to less competitive practices.
The Spanish Government plans to have the law approved by March but is still to rebut the key objection, namely that under the pretence of keeping industry from ‘kidnapping’ any regulator many real competencies are taken away from all regulators… for the Government’s own benefit (?).
CODA: On 25 February 2013, a paper leaked a letter by Ms Neelie Kroes, European Commission Vice-President, to Spain’s Minister of Industry expressing her concern about the CMT’s future lack of independence. One week later, BEREC Chairman Mr Leonidas Kanellos expressed similar worries although the Government had announced changes following the Commission’s letter. Meanwhile, the CNC’s future is still in the air.
