In three judgments delivered in December 2018 and January 2019, the Spanish Supreme Court confirmed the annulment of fines amounting to a total of €120 million imposed on the three main telecoms operators in Spain (i.e., Telefónica, Vodafone and Orange) for abuse of dominance in the wholesale markets for the termination of text messages (“SMS”) and multimedia messages (“MMS”).[1]


In December 2012, the Spanish Competition Authority (“CNMC”) held that three mobile network operators (“MNOs”) in Spain had abused their dominant positions by charging excessive prices in the wholesale markets for the termination of SMS and MMS.[2] In reaching these conclusions, the CNMC noted that the prices of wholesale SMS and MMS termination services in Spain were high, and remained stable over the relevant period, despite considerable traffic increase and cost reductions, and were among the highest in Europe. Telefónica, Vodafone and Orange were fined €46,490,000, €43,525,000 and €29,950,000, respectively.

Judgment under Appeal

As previously reported,[3] the Spanish High Court overturned the CNMC’s decision in September 2017.[4] The Spanish High Court found that the CNMC’s reasoning and investigation leading to the definition of the relevant markets were flawed. In particular, the CNMC had not sufficiently proven that each MNO’s respective network constituted a separate market for the termination of SMS and MMS. The CNMC had simply relied upon a report from the Spanish telecommunications regulatory authority rather than conducting its own case-specific analysis of the relevant markets. Additionally, the CNMC’s decision contained multiple inconsistencies and the CNMC had failed to provide sufficient reasoning for its conclusions.

Judgment of the Supreme Court

On appeal, the Spanish Supreme Court was tasked with ruling on the scope of the Spanish High Court’s judicial review of the CNMC’s complex economic assessments, in particular, with regard to the definition of the relevant markets and to the finding of dominance. The Supreme Court held that judicial review should extend not only to the accuracy of the evidence upon which the CNMC had relied, but also to the relevance and suitability of such evidence for the purposes of supporting the CNMC’s conclusions. The Supreme Court concluded that the Spanish High Court was entitled to annul the CNMC’s decision due to the existence of inconsistencies and to the CNMC’s failure to state reasons.


These judgments demonstrate how the Spanish courts are closely scrutinizing not only the CNMC’s procedure, but also the substance of its decisions, revealing a trend of increasingly intense judicial review in Spain.

[1]      Judgment of the Spanish Supreme Court of December 21, 2018, Case 1867/2018 (appeal 5720/2017), ECLI:ES:TS:2018:4566, Judgment of the Spanish Su- preme Court of January 8, 2019, Case 1/2019 (appeal 5618/2017), ECLI:ES:2019:253 and Judgment of the Spanish Supreme Court of January 14, 2019, Case 1857/2018 (appeal 6552/2017), ECLI:ES:TS:2018:4393.

[2]      Mensajes cortos (Case S/0248/10), CNMC Decision of December 19, 2012.

[3]      Cleary Gottlieb National Competition Quarterly Report, July-September 2017.

[4]      Judgment of the Spanish High Court of September 4, 2017, appeal 41/2013, ECLI:ES:AN:2017:3556. See also judgment of the Spanish High Court of Septem- ber 1, 2017, appeal 40/2013, ECLI:ES:AN:2017:3555 and judgment of the Spanish High Court of September 1, 2017, appeal 36/2013, ECLI:ES:AN:2017:3564.