October 21, 2020

Mediaset temporarily gets rid of the fine from the CNMC


Headquarters of Mediaset Spain.
Mediaset

The National audience has suspended the payment of the financial penalty imposed on Mediaset Spain by the National Markets and Competition Commission (CNMC) and said suspension will remain in force until the merits of the matter are resolved by final judgment, according to Mediaset España in a statement.

The car solves, on the other hand, not suspend the termination obligation in conducts considered “infringing” by the CNMC, applying the jurisprudence of the Supreme Court in this regard, according to Mediaset.

On January 13, 2020, Mediaset España filed a contentious-administrative appeal against the CNMC Resolution, dated November 12, 2019, by which it resolved to impose on Mediaset España uA sanction of 38.9 million euros as well as the obligation to cease the practice of certain behaviors considered an infringement of the Law on the Defense of Competition and the Treaty on the Functioning of the European Union.

In said letter, Mediaset España requested the precautionary suspension of the execution of the sanction and also of the obligation imposed.

Regarding the suspension of the payment of the economic sanction, the National Court agrees to grant the request made by Mediaset Spain in attention to “Its amount is very high and its immediate payment can present a notable damage to the activity” of the company.

The National Court adds to this consideration, according to Mediaset, the impact that the current pandemic situation is having in the advertising market, the ad revenue drop as well as the uncertainty that this pandemic is generating.

Regarding the non-suspension of the obligations of cessation of the practices considered anti-competitive, the National Court establishes that the Resolution of the CNMC imposes the cessation of some conducts whose suspension would allow Mediaset España “to continue carrying out what has been classified as anticompetitive practices, which would mean anticipating the judgment on the merits of the matter; This circumstance is incompatible with a pronouncement of a ‘precautionary’ nature “.

On the other hand, Mediaset España justified its request to suspend the contested resolution in the appearance of “good right” of your defense, inasmuch as, according to the company, “said resolution violates the principle of typicity (an infraction not legally classified is being imputed); the alleged anti-competitive effects have not been proven in any way of the behaviors analyzed; The criteria applied to calculate the financial penalty have not been indicated; and, finally, said sanction is absolutely disproportionate and it lacks a record. ”

In this regard, the National High Court indicates, as specified Mediaset, that the most recent jurisprudence establishes that the appearance of good law can only be applied in assessed cases (acts dictated in application of a rule previously declared null or that are acts identical to another already annulled by the jurisdiction), but not “when the nullity of an act is predicated, by virtue of causes that must be, for the first time, object of assessment and decision, therefore, otherwise the substantive issue would be prejudged “.

However, the National High Court expressly indicates that this denial of the suspension requested on the cessation of the conduct, “does not in any way prejudge the final ruling, as considerations and fundamentals collected in their day on demand shall be object of thorough examination in the main proceedings, not being possible their analysis within the narrow channel of this precautionary incident “, as Mediaset concludes.

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