Nine years later, the European Commission ‘resurrects’ a historic sanction of 66 million euros against Telefónica for the non-competition agreement signed with Portugal Telecom. The European courts of justice had ‘knocked down’ the fine in individual decisions. However, the community executive maintains the decision although, according to the agency, it makes some adjustments. The decision is appealable.
In January 2013, the Commission imposed fines of 66.8 million on Telefónica and 12.2 million on Portugal Telecom for agreeing not to compete with each other on the Iberian Peninsula. In July 2010, in the context of the acquisition by of the Spanish operator of Vivo in Brazil, the parties inserted a clause stating that they would not fight in either Spain or Portugal from the end of 2010. Both terminated the pact in early February 2011, after the regulator will initiate antitrust proceedings.
This decision was appealed by the companies. And the General Court upheld the Commission’s findings regarding the infringements but annulled the fines imposed. He understood that the arguments of the parties according to which there was no potential competition between them in certain markets and that those markets should have been excluded from the value of sales on which the penalties were calculated. The Superior Court of Justice upheld this conclusion in December 2017.
Now, four years after that last pronouncement, the Commission rescues the sanction. He understands, as explained in a public statement, that he fully into account previous sentences and excludes, after a more detailed evaluation, lSales value services “for which it found that there were insurmountable barriers to entry and for which the parties were not, therefore, in potential competition with each other”.