The CNMC files the lawsuit of seven associations, which are preparing an appeal in the National Court, against the public company
The battle opened in January 2019 by two hundred engineering firms against the public giant Ineco will be transferred from the CNMC to the National Court. The competition body has filed the complaint for unfair competition filed by the Asica, Ageinco, Asinca, Acalinco, Asincex, Avinco and Asincar associations. A decision that has divided the Competition Chamber of the CNMC Council, where there have been two individual votes (María del Pilar Canedo and Josep María Salas) requesting the return of the file to the Competition Directorate.
Sources close to the case affirm that the decision not to initiate a sanctioning procedure and to file the actions against the firm dependent on the Ministry of Transport goes ahead with the casting vote of the oldest director. The complainants have until January 4 to go to court and have already agreed to file a contentious-administrative appeal before the aforementioned National Court.
The complaints from the private engineering sector go back many years against the repeated hiring of Ineco without competition, using the figure of the order, formerly known as the management commission. The 20 months of investigation by the CNMC are settled with only two consultations: to the General Comptroller of the State Administration (IGAE) and the complainant associations, which has motivated, among other things, that the individual votes are based on a “ insufficient analysis ”of the complaint to file the case. It is assumed that “the actions carried out by the entities that are called the administration’s own means would not fall within the scope of the application of the Law on Defense of Competition”, it can be read in the individual opinions. The resolution, on the contrary, claims that the Spanish competition authority, through different types of actions, “has analyzed in depth the use of the figures of the orders to its own media.”
The resolution of the Competition Chamber of the Council of the CNMC is settled with two individual votes for an “insufficient analysis”
This confrontation was fought on the double plane of jurisdiction and the courts. And it is that the associations went to the court number 1 of the Mercantile of Madrid, in May 2020, with the same demand. This was admitted for processing in January of this year and a response is still awaited, which is why the associations presented a written impulse before the judge last month. The sources consulted explain that the Chamber demanded a response from Ineco and that the engineering department transferred the responsibility to the State Attorney’s Office, with which the procedure has been delayed.
The appeal before the National Court seeks that the CNMC instruct a new investigation to determine whether Ineco is seizing, or not, a field of activity that private engineering companies see as their own. The public firm chaired by Carmen Librero reached 300 million in revenue in 2020 and is used as the Administration’s own means, with which a minimum of 80% of its income must derive from direct orders from the contracting authorities on which it depends, for the 20% that the firm can win in free competition, as established in article 32.2B of Law 9/2017 on Public Sector Contracts.
The complainants defend that Ineco’s exit abroad makes the business that increases 20% grow, which is accompanied by a higher dose of orders to maintain the 80% -20% ratio and the rating of its own medium. According to article 86.2 of Law 40/2015 of the legal regime of the public sector, the aforementioned assignments have a place when recourse to one’s own environment is more economically efficient than a tender, or when there are reasons of public safety or urgency.
But Ineco’s rivals have not found such justifications for years in multiple projects released to the public. In fact, they commissioned an external opinion on the matter that was sent to the former Secretary of State for Transport, Pedro Saura, and to the CNMC itself before filing a complaint. The aim was to demonstrate that competition in the technical consulting and engineering market is being limited and eliminated due to the actions of Ineco as the Administration’s own medium. Among the complainants, it is claimed that there was no response whatsoever