The CNMC has approved the update to its guidance on competition compliance programmes
The National Commission for Markets and Competition (hereinafter, CNMC) is the body responsible for promoting and safeguarding competition in the Spanish business environment in the interests of society as a whole. To this end, in June 2020 it adopted the ‘Guidance on Compliance Programmes in Relation to the Defence of Competition’, a highly useful reference document designed to guide companies on the criteria that the CNMC considers relevant for assessing the effectiveness of compliance programmes in the field of competition.
In this regard, and given the regulatory, case-law and doctrinal developments that have taken place since its adoption, the Guide was updated on 9 June 2026 through a participatory process, involving an initial public consultation in December 2025 and a subsequent public hearing on the draft document in May 2026. In view of the broad support and consensus expressed at the hearing, it was decided to retain the basic structure, categories and criteria set out in the 2020 Guidelines, as it was considered that, for the most part, they remain fully valid.
However, the review has introduced significant improvements aimed at providing transparency regarding the basic criteria for evaluating programmes deemed relevant by the CNMC, and clarifies the suitability of these criteria with a view to improving their applicability in business practice.
The Guide sets out the key elements that should form part of an effective competition law compliance programme, structured around the following pillars:
- Active involvement of the board of directors and the organisation’s senior management, including an assessment of the so-called ‘tone from the top’ and the potential impact of senior management’s involvement in unlawful conduct on the effectiveness and suitability of the compliance programme.
- The design and implementation of effective training, tailored to the risk profile of the various levels within the organisation.
- The existence of an internal reporting system or whistleblowing channel that enables the early detection of infringements.
- The independence and autonomy of the compliance officer in the design, supervision and control of the system.
- Identification, analysis and management of risks through an up-to-date and dynamic risk map.
- Design of internal procedures for the investigation and management of potential breaches.
- Implementation of a clear, proportionate and effectively enforced disciplinary system.
The CNMC will assess these elements on a case-by-case basis, taking into account the specific characteristics of the undertaking, its size, sector of activity and level of exposure to competition risks; consequently, the analysis of the programme’s effectiveness does not follow a uniform model, but rather an approach based on proportionality and the suitability of the system to the economic operator’s risk profile.
In this context, the update also reinforces an approach based on the economic efficiency of compliance programmes, emphasising that their implementation should not be viewed merely as a cost of regulatory compliance, but as a strategic investment insofar as the benefits derived from an effective programme — including the reduction of the risk of sanctions, the improvement of reputational standing and the optimisation of business decision-making—are, generally speaking, significantly greater than the costs associated with their design, implementation and maintenance.
More specifically, the main new development lies in the substantial modification of the consequences arising from the implementation of an effective compliance programme in proceedings initiated by the CNMC – set out in section three of the Guide – with regard to the prohibition on contracting provided for in the Public Sector Contracts Act; and, furthermore, the possible reduction of the penalty under the Competition Act.
On the one hand – and in relation to the exemption from the ban on contracting with the public sector provided for in Article 72.5 of Law 9/2017 of 8 November on Public Sector Contracts – provision is made for compliance programmes to be assessed either as part of the disciplinary proceedings themselves before the CNMC or once those proceedings have been concluded, whilst the prohibition on contracting remains in force.
In this regard, the compliance programme – which the undertaking is advised to submit at the initial stage of the proceedings – will be assessed and evaluated by the investigating body in its draft decision and by the Council in the penalty decision bringing the proceedings to a close.
The assessment of the programme will focus on verifying the suitability of the relevant technical, organisational and personnel measures that are effective in preventing future anti-competitive conduct. In this context, a suitable compliance programme may, where appropriate, contribute to a favourable assessment of the programme for the purposes of a possible exemption from the ban on contracting.
Furthermore, – and with regard to the possibility of applying mitigating circumstances when determining the amount of penalties, as provided for in Article 64.3 of Law 15/2007 of 3 July on the Defence of Competition – it is established that disclosure during the preliminary investigation phase will be a decisive factor in any assessment of such mitigating circumstances and that, consequently, its late submission during the proceedings may prevent or hinder the recognition of the mitigating circumstance.
In this regard, the assessment of mitigating circumstances is subject to strict requirements in order to prevent the cosmetic use of compliance programmes; for it is only when there is a sufficient material link between the compliance programme and the company’s cooperative and active response to the competition law infringement that the programme may be considered to have had a significant impact for the purposes of mitigating the financial penalty.
Among other factors, those that may be considered as mitigating circumstances include: taking steps to bring the infringement to an end; the fact that the infringement has not actually been implemented; active and effective cooperation with the CNMC; or the adoption of measures to compensate for any damage caused. This is of relevance – as it constitutes a qualified mitigating factor – if the compensation is provided prior to the final decision.
Furthermore, in addition to including an annex of standard indicators for assessing the effectiveness of programmes as a guidance tool, the update emphasises the importance of ensuring that competition compliance programmes are not merely composed of formal elements, stressing that programmes are effective through appropriate design, effective implementation and practical operation. In this regard, it highlights the importance of fostering a culture of compliance that enables the rapid detection of and response to potential competition law infringements.
In this context, the CNMC is consolidating an approach based on the substantive effectiveness of compliance programmes, such that the mere formal existence of policies, codes or procedures is not sufficient unless they are accompanied by their effective implementation. Consequently, the assessment of compliance programmes is increasingly linked to their practical operation and to verifiable evidence of their effectiveness, which reinforces the need for companies to move away from purely documentary models towards compliance systems that are integrated into decision-making and corporate culture.