Aznar, Rajoy, and Sánchez: three presidents united by "the general interest" in a business merger.

MadridWhat is the general interest? Although the answer is as open as the Supreme Court's interpretation—"an indeterminate legal concept"—it will determine BBVA's hostile takeover bid for Banc Sabadell from now until Sant Joan. Deadline for the Spanish government to announce whether or not it will add conditions to the banking operation For reasons of, precisely, general interest. In turn, it is the lack of specificity (or rather, the range of options) that has often ended up sparking debate about the use of this concept by public authorities. Be that as it may, Pedro Sánchez has decided to cling to this concept to further analyze the transaction proposed by BBVA, as permitted by law. However, he is not the only Spanish president to have used it. In different contexts, José María Aznar (PP) and Mariano Rajoy (PP) also appealed to the general interest in the face of a business merger.

Aznar and the Pay-TV Platforms

Before José Luis Rodríguez Zapatero (PSOE) reformed the current Competition Law in 2007, in a business integration or merger, companies had to notify their intentions directly to the Ministry of Economy, which had the power to authorize or prohibit the operation in the first phase, thereby ruling on the matter. advisory and non-binding bodies

An example of the role the State played before the legislative change of 2007 can be found in November 2002, with the merger between the pay-TV platform Canal Satélite Digital (Prisa) and Vía Digital (Telefónica) at the height of the sector's profitability crisis and concentration. José María Aznar's (PP) administration, which gave rise to Digital+ (later renamed Canal+). hinder the maintenance of effective competition in the pay-TV market. "We do not defend anyone's business ambitions, but rather we think of the general interest," Aznar stated in December 2002 to defend that authorization.

Zapatero's reform seeks to introduce greater independence into business merger processes and leave the spotlight to the competition authorities. The Competition Authority (at that time called the National Competition Commission, CNC) is the body that assumes the power to authorize, with or without conditions, or prohibit a merger. Only if it studies it in Phase 2 does it allow the government to play a role, as has been the case with BBVA and Sabadell. And there, the avenue through which the reform left open for executive action was, precisely, that of the general interest. In accordance with this, and not with competition defense criteria, the government could modify the Competition Authority's conclusions.

Rajoy and the Antena 3 case

At the time, some law firms pointed out that this opening meant softening the reform's objective of providing a more technical profile to the analysis of merger transactions. "It would have been positive to include a reference for its exceptional use," states a practical guide to the reform prepared by Uría Menéndez in 2008. The same bill argued that the reform "privileged the freedom of enterprise and increased the independence of the Spanish competition authority, which restricted the possibility."

Along with the concept, the possibility that reasons of public interest, which a government must safeguard, may outweigh competition reasons has also been debated. "Motivation and justification are the cornerstone," indicated some experts in the field. Without going into great detail, the law establishes grounds associated with the general interest: national defense and security, protection of public safety or health, free movement of goods and services, environmental protection, promotion of technological research and development, and the maintenance of sectoral regulatory objectives. "The criteria are sufficiently generic to (potentially) accommodate a wide variety of situations," the same law firm concludes in the document.

In 2012, it would once again be the PP that would use this window of general interest. The spokesperson for Mariano Rajoy's government, Soraya Sáez de Santamaria, announced after a cabinet meeting the decision to lower the Competition conditions for the merger between Antena 3 and La Sexta (previously, the Minister of Economy, Luis de Guindos, had elevated the operation). "For reasons of general interest and the maintenance of information pluralism, but above all to comply with the liberation of the digital dividend," explained the PP spokesperson, without going into further detail.

It's Sánchez's turn now, as some have already targeted him for political interventionism, despite precedents. In any case, if there are disagreements over what the Spanish executive will ultimately do in accordance with reasons of public interest, it could be the Supreme Court itself that finds itself with the takeover bid for Banc Sabadell on the table. Unlike the rulings of the National Market and Competition Commission (CNMC), against which an appeal can be lodged in the National Court, as has already happenedThe agreement reached by the Council of Ministers can be appealed to the Administrative Litigation Division of the Supreme Court, as stipulated by law. However, this is currently an uncertain possibility.