Introduction

Since 2019, Spain has been a leading jurisdiction in antitrust private litigation. Prior to that, Spain had experience with nullity and damages claims resulting from distribution agreements with vertical restraints. However, the situation drastically changed, and Spain is currently an attractive jurisdiction for damages claims.

Spain has several active antitrust cases with ongoing private litigation.

• Nullity claims filed between petrol stations and petrol distributors for the inclusion of vertical restraints.
• Cartel damages claims – mainly follow-on or hybrid. Examples of these cases include:
1. the Spanish paper envelopes cartel fined by the Comisión de los Mercados y de la Competencia (CNMC – the Spanish Competition Authority);
2. the trucks cartel fined by the European Commission (EC);
3. the Spanish decennial insurance cartel;
4. car dealers and car manufacturers fined by the CNMC after issuing several infringement decisions in 2015, upheld by the review courts in 2021; and
5. milk buyers after the CNMC found that there had been anti-competitive conduct within the dairy industry.
• Damages claims against dominant undertakings, though these are quantitatively fewer.

So far, lower courts and courts of appeal have issued most judgments on these cases. However, between June 2023 and July 2024, the Supreme Court delivered four sets of judgments in the Trucks cartel private litigation that had a spill-over effect on other private antitrust litigation and, as will be shown, shaped and made uniform lower courts’ grounds in other cases. The European Union Court of Justice (ECJ), which has seen an increasing number of preliminary references coming from Spain, also has a deep influence in Spanish courts.

Trends and Developments in Spain Regarding Antitrust Litigation

The new trends and developments in antitrust damages claims in Spain focus on three topics:

• estimation of damages;
• limitation periods; and
• procedural limitations to the concept of undertaking – serving claims to subsidiaries that were not addressees of the infringement decision.

Estimation of damages

According to the general principles of Spanish civil procedure, and despite the principle of evidentiary availability of Article 217(7) of the Spanish Civil Procedure Law (Ley 1/2000, de 7 de enero, de Enjuiciamiento civil), a claimant bears the burden to prove the elements that support its claim, while defendants have the onus of proving the arguments and grounds leading to the dismissal of the claim. Therefore, on the one hand, claimants must prove:

• the infringement;
• the causal link between infringement and harm; and
• the harm itself and its quantification.

On the other hand, defendants may prove that:

• there was no infringement (where available);
• there is no causal relation with the alleged harm; or
• the infringement caused no harm or, where it did, the amount is lower than the claimant’s quantification.

On the main elements of the claim, the new trends focus on the estimation of damages.

In 2013, the Supreme Court delivered the seminal judgment for cartel damages claims in the Sugar Cartel litigation (judgment 651/2013) where it laid the rules on the assessment of expert reports in such cases. Firstly, the Supreme Court examined the claimant’s expert report to assess if it (i) built upon reasonable grounds, and (ii) used a reasonable quantification method accepted by sound economic theory. Secondly, it turned to the defendant’s report to appraise if it (i) not only criticised the claimants’ report, but also (ii) offered an alternative quantification built upon reasonable grounds, (iii) making a reasonable and technically grounded hypothesis (iv) based on contrastable and non-erroneous data. Until June 2023, these were the elements that courts took into account when assessing expert reports. If they concluded that none of them (especially, claimant reports) provided a satisfactory quantification, courts either dismissed the claim or opted for estimating the overcharge at a percentage they believed was reasonable.

After the ECJ ruling in Tráficos Manuel Ferrer (case C-312/21), where the ECJ confirmed that national courts could not estimate the overcharge irrespective of the circumstances of the case and the claimant’s evidentiary effort, in the June and October 2023 and March and July 2024 judgments delivered in the Trucks cartel litigation, the Supreme Court revisited these requirements.

• It ruled that the 2013 requirements set the threshold to appraise the expert reports before deciding to award damages in full, or dismiss the claim. However, these should have no direct impact on the courts’ possibility to estimate the award if none of the reports met those thresholds.
• For the judicial estimation of the overcharge, the relevant element of analysis was if claimants had undertaken sufficient evidentiary activity. To assess this, the Supreme Court ruled that courts had to appraise if at the moment of filing the claim:
1. it was practically impossible or excessively difficult to quantify the harm suffered; and
2. the claimant made all reasonable efforts to provide such a quantification (assessing inter alia if it was proportionate to request access to evidence and preparing a new report with such evidence).

If both elements in the second bullet point above are identified, the court could estimate the overcharge if the defendant had not provided an alternative quantification. Otherwise, before estimating the overcharge, courts would have to rule in line with the defendants’ estimation.

These new criteria lowered the bar too much. In the 2023 judgments, the Supreme Court ruled that it was possible to estimate the award in cases where the claimant had only provided an economic report based on meta-studies and statistics not suitable for the quantification of any damage because, when the claim was filed, claimants could not have foreseen the reports’ lack of suitability. In 2024, the Supreme Court rejected the quantification of a different claimants’ report in light of the methodology used to quantify the award, but again conceded that the evidentiary activity had been sufficient. In these sets of judgments, concerning the defendants’ reports, the Supreme Court ruled that it was acceptable to use internal data to estimate the alternative quantification, which could even amount to 0%. However, the Supreme Court ultimately rejected the defendants’ quantification because (i) they offered an alternative reading of the infringement, (ii) the data used had not been contrasted or did not take into account the whole infringement period and (iii) the post-infringement period did not take into account the possible lagged effect of the infringement. Thus, after rejecting all reports, the Supreme Court ruled that a 5% overcharge was acceptable for the cases if a lower or higher overcharge could not be proven.

The impact of these 2023 and early 2024 Supreme Court judgments has been clear. Lower courts and courts of appeals have generally followed the Supreme Court and there is a tendency to set the overcharge at 5% (either increasing or reducing the percentage of overcharge set by judicial estimation). However, these have not been uncritical.

• The Court of Appeal of Valencia, in its judgment of 11 October 2023, delivered in the Trucks follow-on litigation, dismissed a claim due to the lack of evidentiary effort by the claimant. The court criticised the claimant because “providing an expert report is not a ‘procedural requirement’ to be awarded a 5% of the price paid, regardless of the thoroughness of the report”.
• In the Car Manufacturers follow-on litigation, the Court of Appeal of Pontevedra, in its judgment of 6 March 2024, revoked the first instance judgment and dismissed the claim because it argued that the claimant’s report was biased, and rejected common economic methods to quantify the harm. Furthermore, it concluded that the claimant had not made all reasonable efforts to quantify the harm and, in such a situation, estimating the award would mean acting as if Spain had a minimum damage regime (such as in other jurisdictions), when it is not the case. Likewise, the Court of Appeal of Valence, in its judgment of 25 March 2024, dismissed the appeal in what concerned the estimation of the award because the claimant’s report was insufficient to quantify the harm.
• In the same follow-on litigation, Commercial Courts of Barcelona award an overcharge of 3% if they consider that the claimant’s reports provide a reasonable hypothesis. They rule that the features of the infringement (scope of the infringement, duration, market shares of the infringers, etc), are different to the one of the Trucks infringement, and they could not justify setting the overcharge at a 5%.

Furthermore, even after the Supreme Court judgments, some courts accept the defendants’ alternative quantification instead. In essence, they have ruled that judicial estimation of the award was a possible solution when both the claimant’s and the defendant’s reports were discarded, but that if the latter met the Supreme Court requirements, then the overcharge had to be set at the alternative quantification level. At the Court of Appeals level, some examples are the judgment of 2 May 2024 of Court of Appeal of Murcia and the judgments of 24 May and 2 July 2024 of the Court of Appeal of Valencia.

Limitation periods

New trends and developments in Spanish litigation relate to limitation periods. In particular, these deal with setting the dies a quo or the date when the limitation period starts.

In the Volvo/DAF (C-267/20) and Deutsche Bank (joined cases C-198/22 and C-199/22) judgments, the ECJ ruled that the dies a quo for follow-on damages claims from EC decisions was, at least, the day the summary of the decision is published in the Official Journal of the European Union. According to the ECJ, it is at this point when the infringement has ceased, and the potential claimant knows (or can be reasonably expected to know) that it suffered a harm caused by an infringement of competition law and the identity of the infringer. In other words, it has the indispensable information to file the claim.

The Supreme Court, in the 2023 and 2024 judgments, applied these criteria when it had to rule on limitation periods, because the Trucks cartel litigation follows an EC decision. Likewise, lower courts and courts of appeal have followed this approach.

When it comes to follow-on litigation from CNMC decisions, the situation is not as clear because CNMC decisions are only published in the CNMC’s website (instead of Spain’s official journal). However, the CNMC issues a press release with the names and features of the infringement on the same day of delivery of the decision, and the official non-confidential version follows the press release within a short period. Finally, judgments concerning appeals against the decision are published when delivered, but the details of who appealed the decision and when the decision was appealed are not published.

In the Paper Envelopes and the Car Manufacturers follow-on litigation, two trends have been identified.

• On the one hand, courts that considered that the dies a quo could not be set before the CNMC’s decision became final after each addressee exhausted all potential appeals before the National Higher Court (Audiencia Nacional) or the Supreme Court. These courts argued that the scope of the decision could change before then and potential claimants did not have the means to know if they had been harmed until that moment. Therefore, they could not be expected to send out-of-court claims or even file damages claims. For instance, see the judgment of 11 June 2024 of the Court of Appeal of Madrid.
• On the other hand, other courts ruled that claimants met the ECJ’s requirement of having the indispensable information to file the claim when the CNMC publishes its decisions, because with the decision itself and press release, it is possible to identify the scope of the infringement and the identity of the perpetrator. Likewise, since limitation periods can be easily interrupted with simple out-of-court claims (ie, a letter or an email is enough) and defendants can ask the court to stay proceedings until the appeal against the CNMC’s decision is final, there is no need to wait until these other proceedings are completed to file the damages claims. An example is the judgment of 23 May 2024 of the Court of Appeal of Alicante.

In the context of the Car Manufacturers follow-on litigation, a Commercial Court of Zaragoza requested the ECJ to issue a preliminary ruling on the setting of the dies a quo in claims following CNMC’s decisions (case C-21/24). Therefore, this judgment will be crucial to settle this question for current and future follow-on litigation.

Limits to the notion of undertakings: serving claims on subsidiaries, not addressees, of infringement decisions

The final trend concerns the possibility to serve a claim against an addressee of a competition authorities’ decision on the national subsidiary’s registered office instead of the defendant, because it is located in a different country, based on the concept of undertaking and the notion of economic entity.

In the Trucks cartel litigation, Transsaqui (the claimant) filed a damages claim against Volvo AB, whose registered office is in Sweden, but requested that the writ of summon was to be served in the Spanish subsidiary’s headquarters in Madrid. Even if the national subsidiary requested the court agent to summon Volvo AB in its Swedish headquarters several times, based on the principle of the unity of undertakings, the commercial court declared Volvo AB to have been validly served and awarded damages to Transsaqui in February 2020, which became final. In June 2021, Volvo AB applied to the Supreme Court for a review of the judgment awarding damages to Transsaqui because the ruling had been obtained fraudulently by having served all writs of summon in the national subsidiary. Transsaqui argued that the reasons to opt for serving in Spain were on procedural economy grounds and the concept of undertaking. The Supreme Court requested a preliminary ruling from the ECJ (case C-632/22) on whether or not the service of the writ of summons was properly effected when it was attempted to serve process against the parent company at the subsidiary’s headquarters of the country where the proceeding was brought.

The ECJ, in its judgment of 11 July 2024, ruled that a competition law damages claim against a parent company is not validly served with a writ of summons service effected (or attempted) at the national subsidiary’s domicile, even if both parent company and subsidiary form an economic unit, on several grounds.

• Being part of the same economic unit does not mean that the subsidiary has been designated as having the power to receive judicial documents on behalf of the parent company (and it cannot be presumed without jeopardising the parent company’s rights of defence).
• Acts aiming at facilitating free movements of judicial decisions and documents have been put into service to promote access to justice and facilitating transmission of documents, and, since Volvo AB’s registered office is known and it has not appointed an authorised representative in Spain, any judicial documents addressed to Volvo AB should be served in its registered office.
• If the claimant wanted to avoid the costs of translation and having the writ of summons served in a different member state, it could have filed the claim exclusively against the national subsidiary if it is part of the same undertaking and the Sumal requirements (case C-882/19) are met.

The Supreme Court has still to deliver its judgment on the national case. However, this judgement is of utmost importance for future competition law private litigation where defendants may be located in member states different from where the claim is brought. Claimants can file the claim where the harm has been suffered, but if they choose to serve the parent company (with their seat in a different member state), they have to serve them in their headquarters (and accept the payment of translation and transmission costs), rather than in the national subsidiary’s premises.

Read together with the recent ECJ MOL judgment of 4 July 2024 (case C-425/22), the ECJ has made it clear that the notion of undertaking and the concept of economic unit belong to the merits of the case but are not per se a reason to alter fundamental and well-established procedural rules. Neither of them justifies:

• serving judicial documents in a place different to the defendant’s domicile when the latter is in a member state; or
• bringing damages claims for the harm exclusively suffered by a subsidiary at the parent company’s headquarters in a member state when there are no ties between the harm suffered by the subsidiaries and the parent company’s jurisdiction.