Background: why the CNMC fined Telefónica
In July 2015 the CNMC found that Telefónica and Yoigo (Xfera Móviles) had committed a single and continuous infringement of Article 1 of the Spanish Competition Act (LDC) and Article 101 TFEU through a set of network and commercial agreements (case S/0490/13). Telefónica was fined EUR 6 million and Yoigo EUR 300,000.
On the network side, the CNMC objected to the national roaming arrangements between the two operators: (i) a 2008 clause giving Telefónica an absolute veto over any resale by Yoigo of the wholesale capacity it bought, which kept Yoigo out of the market for supplying mobile virtual network operators, and (ii) a 2013 agreement giving Telefónica access to Yoigo’s 4G network, which reduced the independence of the two rivals in coverage and quality.
On the commercial side, under a 2013 agency agreement, Yoigo marketed Telefónica’s fixed telephony and broadband services, in Telefónica’s name and on its behalf, bundled with Yoigo’s own mobile services. The CNMC accepted that this could be pro-competitive, as it allowed Yoigo to offer fixed-mobile packages without a fixed network of its own, but held that several clauses neutralised those benefits and restricted Yoigo’s competitive pressure on Telefónica in retail mobile.
In 2021 the High Court (Audiencia Nacional) annulled two of the roaming findings, partially annulling the decision accordingly, but upheld the rest.
The Supreme Court’s ruling
The Supreme Court admitted Telefónica’s cassation appeal on a single question, which was subsequently dismissed by its judgment 980/2026 of 22 July 2026 (ECLI:ES:TS:2026:3728): whether the agency agreement was a vertical agreement falling outside Article 101.1 TFEU.
It was undisputed that Yoigo bore no financial or commercial risk. Notably, neither the CNMC nor the High Court had analysed whether the contract was genuine agency: the CNMC dismissed the point in one sentence, describing the deal as horizontal cooperation whatever its label, and the question reached the Supreme Court only because the order admitting the appeal framed it that way. The Supreme Court therefore did not have to decide whether there was risk, but whether its absence was enough for the agency agreement to fall outside Article 101.1 TFEU and 1.1 LDC
The block exemption does not cover vertical agreements between competitors (Article 2.4 of Regulation 330/2010, now Regulation 2022/720), and a genuine agency agreement may fall under Article 101.1 TFEU and Article 1 LDC where it facilitates collusion. The Supreme Court cites the the VBER and its Guidelines and relies on them.
What deserves attention is the breadth of the reading, now binding cassation doctrine. First, Telefónica argued that the parties were not competitors: Yoigo had never been active in fixed telephony, either on its own or as anyone’s agent, and lacked the financial means to enter it. The Supreme Court instead looked at the markets affected by the contract, including retail mobile and fixed-mobile bundles, where the agent sells its own products. Second, “facilitating collusion” is read as covering any clause with restrictive horizontal effects between direct competitors, which seems to go beyond the examples in paragraph 20 of the 2010 Vertical Guidelines (paragraph 44 of the 2022 Vertical Guidelines): principals sharing agents while collectively excluding other principals from them, or using agents to collude on marketing strategy or to exchange sensitive market information.
Effects and risks for agency networks
The “no-risk” test is therefore necessary but not sufficient whenever the agent competes with the principal in any market touched by the agreement. Two clauses proved fatal I this specific case:
- an operating rule preventing Yoigo from offering the bundle to a significant part of Telefónica’’s existing broadband customers, shielding the principal’s base from its agent-competitor while Telefónica gained new customers through Yoigo. Customer restrictions are normally inherent in agency, but here the horizontal context prevailed; and
- the agreed-upon term of the contract was six months with automatic renewal, unless either party provided prior notice to the contrary, seen as a lever to discipline Yoigo and not among the obligations inherent in agency. According to the CNMC, the said risk was not theoretical: in May 2014, in accordance with the provision of the contract, Telefónica gave notice that it would not renew beyond 31 July, and then, 16 days before expiry, offered to renew the contract for an additional six month period as stated in the contract, which Yoigo accepted. The CNMC cited this episode as evidence of the pressure the clause allowed.
The Court’s broad reading of “facilitating collusion” fits the first clause comfortably, since a promise not to compete for a rival’s customers is classic customer allocation, but stretches the concept for the second, a reciprocal non-renewal right that merely disciplines the parties with regard to the execution of the contractual clauses rather than coordinating their conduct in the affected markets.
Principals appointing competitors, or dual-role distributors, as agents should therefore (i) map every market in which the agent is active, including bundles and adjacent products (not just the market for the contract products), (ii) limit customer restrictions to what the agency function objectively requires, (iii) set balanced notice and termination terms and (iv) document at signature the justification for each restriction.
Conclusion
The rules have not changed, but their reach in Spain has: an agent selling its own products alongside its principal’s may be treated as a rival, and the clauses that would be normally taken for granted in agency will be tested from a horizontal perspective.
Article published by Callol, Coca & Associates
