The CNMC inspects an energy group over a possible discriminatory market foreclosure

The National Commission on Markets and Competition (CNMC) is investigating possible anticompetitive practices in the energy markets in Spain, consisting of a possible discriminatory market foreclosure that would limit the capacity of third-party operators. Between 26 and 29 October 2026, the CNMC carried out inspections at the headquarters of a business group operating in the Spanish energy sector, within confidential information proceedings opened after a preliminary investigation by the Competition Directorate, according to the official note published on 4 November.

The identity of the inspected group has not been made public, as is usual at this stage of the procedure. The inspections are a preliminary step to the possible formal opening of a sanctioning proceeding and do not prejudge the outcome of the investigation or the entity's liability, the body itself stresses.

The known facts

The available information is what the CNMC itself chose to make public in its note of 4 November 2026. The inspections took place between 26 and 29 October 2026 at the headquarters of a business group operating in the energy sector in Spain. The operation falls within confidential information proceedings opened after a preliminary investigation by the Competition Directorate, the investigating unit from which the body's sanctioning proceedings originate. The conduct under suspicion is a possible discriminatory market foreclosure that would limit the capacity of third-party operators in the Spanish energy markets.

The CNMC is explicit about the scope of the news: the inspections are a preliminary step in the investigation of the alleged conduct and prejudge neither the outcome nor the liability of the inspected entity. If the analysis of the documentation gathered yields indicia of practices prohibited by competition law, the formal sanctioning proceeding would be opened.

Abuse of dominant position: the applicable framework

If the investigated practices were confirmed, they would constitute an infringement of article 2 of the Competition Defence Act and of article 102 of the Treaty on the Functioning of the European Union, the provisions prohibiting abuse of a dominant position. Discriminatory market foreclosure - conduct that selectively restricts competitors' access to a market - is one of the classic types of exclusionary abuse.

The CNMC recalls in its note that these practices constitute very serious infringements of competition law, punishable with fines of up to 10 per cent of the infringing company's total turnover in the year immediately preceding the imposition of the fine. That sanctioning ceiling gives an idea of the potential economic exposure for the investigated group if the proceeding succeeds.

The dual regulatory coverage - article 2 of the Competition Defence Act and article 102 of the Treaty on the Functioning of the European Union - is characteristic of proceedings affecting trade between Member States, and allows the national authority to apply European competition law directly. In practice, the joint invocation of both provisions usually anticipates that the authority contemplates effects of the conduct beyond the purely national market.

What a CNMC inspection means

Inspections - known in practice as "dawn raids" - are on-site verification actions in which the body's inspectors access the company's premises to gather documentation, emails and any support relevant to the investigation. They are carried out with judicial authorisation when the company does not consent to access, and their scope is delimited by the object of the investigation.

For law firms, the inspection phase activates immediate advisory duties: cooperation with the authority without obstruction - the sealing of documentation and barriers to inspection are sanctioned separately - preservation of the confidentiality of lawyer-client communications and preparation of the defence strategy with the information the inspection record itself reveals about the direction of the case. The inspected company has the right to be accompanied by legal advice during the operation, to have a record drawn up of the actions and to know the object and scope of the investigation as delimited in the corresponding warrant or authorisation.

Accumulated experience with these operations advises having a prior internal protocol: who receives the inspectors, how the review of computer equipment and corporate email is accompanied, how access to directors' and employees' personal devices is managed and what records are kept of everything checked. Companies that improvise their response tend to make mistakes that are hard to repair, from the disorderly handover of documentation to conduct the authority may read as obstruction.

The energy sector under surveillance

The action adds to a period of intense activity by the body in competition matters, with recent sanctioning proceedings in digital and telecommunications markets and regulatory analysis actions such as the report on infant nutrition advertising. In the energy sector, the combination of integrated incumbents and access tensions for third-party operators makes it a recurring target of competition surveillance across Europe.

For companies in the sector, the news reinforces the relevance of competition compliance programmes: training of commercial teams, inspection response protocols and review of access and discount practices with third-party operators, especially when the company operates at several links of the value chain.

The procedure that follows

The typical processing after an inspection comprises the analysis of the seized documentation and, if sufficient indicia are found, the formal opening of the sanctioning proceeding, with its investigation phase, proposed resolution and hearing of the interested party. The Competition Directorate investigates and the corresponding chamber of the body's council decides. Sanctioning resolutions can be appealed before the Audiencia Nacional, which has become the habitual review instance for the CNMC's major fines.

Until a formal opening exists, the investigation keeps its confidential character. The official note insists that the mere carrying out of inspections does not prejudge the outcome, a caution that contentious-case law has reinforced in recent years when examining the presumption of innocence of investigated companies.

It is worth distinguishing, at this point, the two phases of the procedure. The confidential information phase is one of preliminary investigation: the Competition Directorate examines the documentation gathered and decides whether there are sufficient indicia to propose opening the proceeding. If there are none, the action is closed without further consequence. If there are, the sanctioning proceeding is opened, at which point the investigated company acquires the status of interested party and accesses the content of the proceedings with full defence guarantees.

That the operation ran for four days, from 26 to 29 October, gives an idea of the documentary volume to be reviewed in a group of this scale. In this type of diligence, inspection teams work on the paper documentation and the company's digital media, and the resulting record sets the inventory of what was gathered: a piece that later organises the investigated party's entire defence strategy.

Article 102 TFEU, invoked in the note, is the same European provision on abuse of dominance analysed in the CJEU judgment on FIFA agents. And the possible harm to competitors and consumers that the CNMC investigates has its private-law reflection in litigation such as the damages claim by two hotels against Booking.

Frequently asked questions

What is the CNMC investigating in the energy markets?

Possible anticompetitive practices consisting of a discriminatory market foreclosure that would limit the capacity of third-party operators, after inspections carried out from 26 to 29 October 2026 at a business group in the sector.

Which company has been inspected?

The official note does not identify the business group. The investigation remains in the confidential information phase.

Do the inspections imply guilt?

No. They are a preliminary step to the possible opening of a sanctioning proceeding and do not prejudge the outcome, as the CNMC itself recalls.

What sanction could apply?

Abuse of a dominant position is a very serious infringement, with fines of up to 10 per cent of the company's total turnover in the year preceding the fine.

Which rules would have been infringed?

Article 2 of the Competition Defence Act and article 102 of the Treaty on the Functioning of the European Union, which prohibit abuse of a dominant position.

Sources

• Official CNMC press note, "La CNMC investiga posibles practicas anticompetitivas en los mercados energeticos en Espana", 4 November 2026, consulted on 10 November 2026.