A sentence of the Sixth Section of the Contentious Chamber of the National Court has annulled for formal defects the fines of 88 million imposed by the National Commission of the Competition Market (CNMC) to 11 dairy industries for information exchange and distribution of the market for raw cow's milk in 2013. The Chamber partially estimates the resources of the dairy companies and, without going into the merits of the case, orders the procedure to be rolled back to the moment immediately before April 24, 2014, in which the CNMC reopened the instruction of the file to modify and expand the accusations that had already been established. The Chamber has notified 10 judgments, one for each appeal raised by the dairy companies.
Prior to these judgments, one of the affected companies, Nestlé, first appealed to the Contentious Court of the National Court and then to the Supreme Court the subsequent modification of the specifications for the facts made by the Competition Directorate. Both the National Court and the Supreme Court (in a ruling dated July 24) concluded that the resolution of April 24, 2014 of the Directorate of Competition ordering the reopening of the investigation phase, based on the power to correct material errors , was null because that correction not only implied a legal valuation but also implied a procedural irregularity, when reopening the phase of instruction.
With this criterion set by the Supreme Court, the Sixth Section now analyzes in its judgments whether it should also apply to the entities that have been sanctioned in the same sanctioning proceeding and that did not appeal the resolution of April 24, 2014. The Chamber concludes that the criterion must affect all and not only Nestlé, as a recurring entity in these processes "and this even if they were not affected by the aforementioned temporary modification of the imputation".
The magistrates argue that the participants in this single proceeding are affected by any of the procedural vicissitudes that may occur and in the specific case analyzed, the reopening of the investigation phase, although it implied a greater temporary imputation for some of the expedited ones, "The certain thing is that this decision supposed that a new sheet of concretion of facts is dictated that is the one that the quoted sentences has annulled".
Therefore, the Court annuls the sanctioning resolutions for having been issued in a proceeding whose actions derive from an act of processing of the Competition Directorate (the one of April 24, 2014) that has been declared null by the judicial organs: "a defect Formal irregularity in the single procedure can not exist only for some. "
In recalling the proceedings of the CNMC at the time prior to the resolution of April 24, 2014, the Chamber explains that the proceeding may be continued through its own channels and that it may culminate either with a sanctioning resolution or with a resolution of file, "according to the assessment of the evidence and the arguments of the parties made by the CNMC with full freedom of discretion".