Basis of the complaint: Predatory Pricing.
ACUTELAN clarifies that its initiative is not a complaint against low prices, which it considers legitimate if they reflect genuine efficiency. The problem arises when prices can only be sustained through economic sacrifices that an efficient competitor could not bear without incurring structural losses. According to the association, this constitutes a strategy aimed at stifling and eliminating competition.
Legal Basis and the "AKZO Test"
The complaint is based on the jurisprudence of the Court of Justice of the European Union (cases such as AKZO and Post Danmark). Under this doctrine:
Prices below variable costs: An intention to drive out competitors is automatically presumed, as there is no other rational economic justification.
Prices between variable and total costs: These can be considered predatory if there are indications of an exclusion strategy.
ACUTELAN's technical reports suggest that the DIGI offers analyzed would be even below variable costs, triggering the presumption of anti-competitive conduct.
Findings from the Economic Analysis
The dossier highlights several critical points after carrying out replicability models:
Negative offers: Without the bundling of mobile lines, all the "Fiber Smart" offers analyzed show negative balances against avoidable costs.
Impact of mobile: Although including mobile lines improves profitability, it is not enough to eliminate the total deficit of the commercial catalog in the base scenario studied.
Commercial focus: The largest deficits are concentrated in the products with the most sales traction, indicating that it is not a marginal problem but a structural one.
ACUTELAN
requests three specific actions from the regulatory authority:
Formal investigation: Verify whether DIGI covers its variable and avoidable costs according to the "equally efficient operator" standard.
Access to internal information: Request analytical accounting data, installation costs, logistics, acquisition and actual wholesale conditions that are not public.
Provisional measures: Consider precautionary measures if there is a risk of irreversible competitive damage during the processing of the case.
Relevance to the Public Interest
: For ACUTELAN, this case transcends a mere business dispute. They argue that competition based on financial resilience to losses, rather than efficiency, weakens local and regional operators. This could result in a market with less investment, less innovation, and less diversity in the medium term, ultimately harming the consumer.
Other cases reported to the CNMC
Historically, the CNMC and its predecessor (CNC) have investigated similar conduct in other sectors:
Canarias de Explosivos (Expte. 626/07): A case cited in the jurisprudence of competition in Spain as an example of abuse of dominant position, although focused on excessive prices and exploitation, is part of the catalog of price abuses analyzed by the regulator.
Postal Sector: In the past, private postal operators have filed complaints against Correos with the CNMC for applying discounts and prices that they considered predatory in order to attract large clients, alleging that these did not cover the real costs of the service.
In the telecommunications sector, the CNMC (National Markets and Competition Commission) typically focuses on regulating wholesale offers to prevent margin squeeze. If an operator with its own network sets very low retail prices and high wholesale prices for others to use its network, it prevents profitable competition—a practice very similar in effect to predatory pricing. For example, Telefónica has received multiple sanctions and had its benchmark offers reviewed to ensure that its prices are replicable by third parties.
