Antitrust Litigation 2025 Comparisons

The basic legislative framework for antitrust litigation in Spain is the Law 15/2007, dated 3 July, on Competition Defence (LDC) and Law 1/2000, dated 7 January, on Civil Proceedings (LEC), as amended in May 2017 by the implementation of the Directive 2014/104/EU, Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the “Damages Directive”).

Article 1902 of the Spanish Civil Code still applies to actions for damages arising from infringements of competition law that occurred prior to the incorporation into Spanish law of the Damages Directive. The Supreme Court has confirmed the above and also that “Article 1902 of the Civil Code cannot be applied to events that occurred prior to the date of its transposition by means of an interpretation in conformity with the Directive”. See, for example, judgment from the Supreme Court dated 21 January 2025, ECLI:ES:TS:2025:216.

Nevertheless, the distinction seems to have limited practical consequences. For instance, the Supreme Court has stated that the judicial estimation of damages is not a novelty introduced by the Damages Directive, but rather a faculty that was already embedded in Spanish law. For example, see judgment dated 27 January 2025, ECLI:ES:TS:2025:270, last paragraph of legal ground 11: “the power of the judge to determine compensation for the damage caused by conduct infringing competition law by means of an estimate was already recognized in our legal system as a necessary consequence of the principle of full compensation for the injured party, as established in Article 1902 of the Civil Code and Article 101 TFEU, even before the entry into force of the Directive and its transposition into domestic law through Article 17.1 of said Directive”. However, to quote another example, although it is a minority position, certain courts consider that the regime of joint and several liability provided for in the Damages Directive would not apply to the claims under Article 1902 of the Civil Code, a point the Supreme Court has not yet specifically decided on.

Recent years have witnessed important legislative and judicial developments. The implementation of the EU Damages Directive harmonised key aspects of private antitrust litigation, including limitation periods, disclosure, and the presumption of harm in cartel cases. Spanish courts have issued landmark decisions clarifying the application of these rules, particularly regarding the quantification of damages and the admissibility of economic expert evidence.

Although the substantive provisions of the EU Damages Directive are not applicable to the cases decided until now (with the exception of the provisions on limitation, which have been applied to prior cases in the circumstances derived from the judgment of the 22 June 2022, C-267/20, DAF & Volvo CJEU ), the Supreme Court has considered that the main developments of the Directive were already present in the prior regime for damages claims. For example, as mentioned in 1.1 Current Framework for Private Antitrust Litigation, Supreme Court case law has expressly clarified that the court’s ability to estimate the quantification of the damages under Article 17.1 of the Directive was pre-existing in the Spanish legislation and, therefore, courts are always entitled to assess the damage, even if they cannot rely on the parties’ expert reports, provided that a minimum probatory activity has been carried out by the plaintiff.

Spain has seen a significant increase in private enforcement, particularly following high-profile cartel decisions by the Spanish Competition Authority (CNMC) and the European Commission. Notable cases include follow-on damages claims related to the trucks litigation (stemming from two European Commission decisions in 2016 and 2020) and the car manufacturers’ cartel (from a CNMC decision dated 2015).

Ten years after the important case law from the Supreme Court in the sugar cartel case, new case law has been resumed as from 2023. The Supreme Court has shaped the approach of Spanish courts to issues such as the burden of proof, quantification of damages, and the pass-on defence.

In June 2025, the Supreme Court also decided on two important issues that were still pending to be resolved in Spain: (i) the starting date for the limitation period in follow-on cases arising from CNMC’s decisions only begins when the decision has become final (which typically adds a period of around five or six years); and (ii) compound interest up to the date of the claim is applied in the context of damages actions for competition law infringements except if in the specific case it is proven that there was no lost opportunity cost or that the application of compound interest would result in overcompensation.

It is also important to mention that a draft law on collective actions was published in the Parliament’s Gazette in March 2025. Its main objectives are to enhance judicial protection for consumers, ensure effective remedies against unlawful practices, and align Spanish law with Directive (EU) 2020/1828 on representative actions. It covers both injunctive (cessation) and compensatory (redress) actions, where designated “qualified entities” would be authorised to bring collective actions under an opt-out system for Spanish residents except for high-value claims or in certain circumstances where the court may require an opt-in system. Foreign entities from other EU member states, included in the European Commission’s list, are also recognised for cross-border actions, provided they meet the necessary criteria.

Nevertheless, the question of whether the law (if passed as it is) covers collective actions for antitrust damages has been a subject of debate: while some legal experts interpret the broad scope of the draft law as including antitrust damages claims by consumers, others note that consumers affected by antitrust conduct are not “consumers” as such, since the kind of protection for victims of anti-competitive conduct is of a different nature to consumer protection under wrongdoing from which the harm arises and is not strictly related to consumer protection under Article 169 TFUE. In the view of the authors, an express clarification on the law is required. In addition, if antitrust litigation is included, some technical adaptations would be required to better align the draft law with the practicalities of antitrust litigation and, possibly, to also regulate collective actions for damages where the victims are not consumers.

The statutory basis for private antitrust claims in Spain is rooted in both national and EU law, reflecting the harmonisation of competition policy across member states.

The LDC constitutes the legal instrument on which antitrust claims can be based for infringements that took place after 27 May 2017 when the Damages Directive was implemented into Spanish law. For infringements taking place before that date, the applicable regime is that established in Article 1902 of the Spanish Civil Code, the typical non-contractual (tort) liability action which requires proof of an unlawful act or omission, the existence of a damage and a causal link between the conduct and the damage.

Although there are some nuances between the two legal regimes, in general, both provide for a distinction between follow-on and stand-alone actions.

Follow-On Actions

These are claims for damages brought after a competition authority (such as the European Commission or the Spanish CNMC) has issued a binding decision finding an infringement of competition law. See 2.3 Impact of Competition Authorities for further details.

In follow-on claims, the infringement is irrefutably established and cannot be contested in the civil proceedings. The claimant must still prove the existence and quantification of the damage and the causal link, but the burden regarding the existence of the infringement is alleviated.

Stand-Alone Actions

These are claims brought independently of any prior decision by a competition authority or after a decision that does not comply with the legal requirements (See 2.3 Impact of Competition Authorities for further details). The claimant must prove the existence of the infringement, the damage suffered, and the causal link between the two.

In both cases, the recoverable damage is any and all the harm that the victim of the anti-competitive conduct might prove to have suffered: (i) the damnum emergens or actual loss (ie, the direct loss suffered as a result of the infringement; (ii) the lucrum cessans or loss of profit (ie, the profit that the injured party failed to obtain due to the infringement; and (iii) the applicable interest, which is considered an essential element to ensure full compensation.

In Spain, the allocation of antitrust cases is governed by both subject matter and territorial rules, with a clear specialisation in the handling of these disputes.

Subject-Matter Jurisdiction

Antitrust cases fall under the jurisdiction of the civil courts, specifically the Juzgados de lo Mercantil (Commercial Courts). The law assigns to these courts the competence to hear matters related not only to antitrust law but also to other commercial areas of law like unfair competition, industrial property, intellectual property, etc.

Territorial Jurisdiction

There is one or more Commercial Court per province (51 provinces in Spain).

The general rule is that the competent Commercial Court is determined by the domicile of the defendant or, in some cases, by the place where the harmful event occurred or where the effects of the anti-competitive conduct were felt. In practice, for claims brought by consumers or small businesses, the courts of the claimant’s domicile may also be competent.

Binding Nature of NCA Decisions on Civil Courts

Pursuant to Article 75.1 of the LDC, the finding of an infringement of competition law in a final decision by a Spanish competition authority or a Spanish court is deemed irrefutable for the purposes of a damages action brought before a Spanish civil court. This means that, in the context of a civil damages action, civil courts are bound by the NCA’s finding of infringement (provided that no further judicial challenges are possible) and may not question the existence of the infringement or render judgments incompatible with such a decision.

This applies to decisions issued by either the Spanish NCA (the national CNMC or the regional authorities from Autonomous Communities which have created one) or the European Commission.

Role of the NCAs in Civil Antitrust Proceedings

The NCA may play a relevant role in civil proceedings, although its primary function is the investigation and sanctioning of anti-competitive conduct in the administrative sphere. In the context of civil litigation, the NCA may:

• provide information or reports at the request of the civil court; and
• intervene as amicus curiae in civil proceedings, offering its technical expertise and interpretation regarding the infringement and its effects.

However, the NCA does not act as a party to the civil proceedings, nor does it have the power to determine the amount of damages, which is the prerogative of the civil court.

Impact of Foreign NCA Decisions on Spanish Civil Courts

Decisions of foreign NCAs (ie, those of other EU member states) do not have the same automatic binding effect.

Nevertheless, they may have a significant impact in Spanish civil proceedings.

• Decisions of foreign NCAs may be considered as relevant by Spanish civil courts, especially where they concern the same facts at issue in the litigation.
• As established in Article 75.2 of the LDC, it shall be presumed, unless proven otherwise, that a competition law infringement exists when it has been established in a final decision by a competition authority or judicial body of any other member state, without prejudice to the possibility of alleging and proving new facts of which the party had no knowledge in the original proceedings.

Therefore, the Spanish court may depart from the facts established in the foreign decision, expressly stating the reasons justifying such divergence.

Allocation of the Burden of Proof

The allocation of the burden of proof in Spanish civil proceedings is governed by Article 217 of the Civil Procedure Law (LEC).

The principle is that each party must prove the facts on which it bases its position. The burden of proof does not establish who must prove or how certain facts must be proved, but rather determines the consequences of a lack of sufficient proof of relevant facts. If, at the time of judgment, there is uncertainty due to insufficient evidence on certain relevant points, the rules of the burden of proof dictate which party is to be prejudiced by this lack of proof.

Legal Presumptions and Judicial Presumptions

There are both legal and judicial presumptions in Spanish law. In the context of antitrust litigation, the most relevant are judicial presumptions under Article 386 LEC.

They allow the court to dispense with proof of the presumed fact if, from the proven or admitted facts, and the precise and direct link between them, the court reaches certainty about the presumed fact, according to the rules of sound criticism.

Article 386 LEC is not a legal presumption and it admits proof to the contrary. The party affected by a judicial presumption may always adduce contrary evidence, either to prove the non-existence of the presumed fact or to demonstrate the absence of the necessary link between the presumed fact and the proven fact that supports the presumption (Article 385.2 LEC, by reference from Article 386.2 LEC). If the defendant’s evidence does not undermine the basis or result of the presumption, the court must address the presumed fact.

In antitrust litigation, there is also a specific legal presumption introduced by Article 17.2 of the Damages Directive as implemented in Article 76.3 of the LDC: cartel infringements are presumed to cause harm, unless proven otherwise. However, even for cases not covered by the temporal scope of this provision, the Supreme Court has consistently held that judicial presumptions of harm may be applied if the requirements of Article 386 LEC are met. Indeed, the presumption of harm, at least in long-lasting cartels, has been easily applied by the Spanish courts.

Probative Value of NCA Decisions

See 2.3 Impact of Competition Authorities for details on the binding nature of NCA decisions. In any case, NCA decisions have significant probative value in civil damages actions. The Supreme Court has affirmed that the factual findings and legal characterisation of the infringement contained in such decisions are binding on civil courts, at least as regards the existence, participants, duration, and scope of the infringement.

The courts may, however, assess the specific impact of the infringement. The NCA decision serves as a solid factual basis for the presumption of harm, especially when the characteristics of the cartel (object, participants, market share, duration, and geographic scope) are clearly described.

Indeed, the Supreme Court has established that, even before the Damages Directive, civil courts are required to take into consideration the facts established as proven in final NCA decisions, particularly insofar as such facts constituted the conduct classified as unlawful due to its anti-competitive nature and/or formed the factual basis for assessing the scope and consequences of the infringement, without prejudice to the court’s power to depart from those facts, provided it sets out the reasons and grounds justifying such divergence.

Applicable Standard of Proof

The standard of proof in civil proceedings is the balance of probabilities. The claimant must provide sufficient evidence to make it more likely than not that the alleged facts are true. In the context of antitrust litigation, the Supreme Court has recognised the particular evidentiary difficulties faced by claimants due to information asymmetry and the secretive nature of cartels. Consequently, the courts have adopted a flexible approach, allowing for judicial presumptions and the use of estimation techniques when precise quantification of damages is practically impossible or excessively difficult.

Nevertheless, the claimant is still required to present a minimally reasonable and technically founded estimation of the harm, typically supported by an expert report based on generally accepted methods and plausible results. The court may then use its powers of estimation to determine the amount of damages, provided the existence of harm is established.

Existence of the “Pass-On” Defence

Spanish law recognises the “pass-on” defence in actions for damages arising from anti-competitive conduct. The “pass-on” defence allows a defendant (typically the infringing undertaking) to argue that the claimant has not suffered the full extent of the alleged harm because the overcharge or damage has been passed on, wholly or partially, to downstream purchasers or customers.

This doctrine is rooted in the compensatory nature of damages in competition law and the principle prohibiting unjust enrichment: compensation should not be awarded to a party that has not actually suffered the loss, as this would result in overcompensation.

Allocation of the Burden of Proof

The defendant who invokes the “pass-on” defence bears the burden of proving the factual basis for this defence.

The Supreme Court has clarified that, in order to prove the passing-on, it is not enough to show a mere increase in the claimant’s prices; it must be established that the claimant has actually succeeded in passing on the harm, taking into account possible reductions in sales, loss of market share, or other economic effects that may have prevented full compensation through price increases. If the defendant fails to provide sufficient evidence of the “pass-on”, the defence will not be upheld.

Rules on Limitation Periods in Competition Damages Actions

The rules governing limitation periods for actions seeking damages for competition law infringements in Spain have evolved significantly, particularly in light of the transposition of the Damages Directive and the case law of the Court of Justice of the European Union (CJEU) and the Spanish Supreme Court.

Duration and Commencement of the Limitation Period

Pre-Directive regime

Prior to the transposition of the Damages Directive, the applicable limitation period was generally one year, as provided by Article 1968.2 of the Spanish Civil Code. The dies a quo (starting point) was the moment when the injured party became aware of the facts giving rise to liability, which entailed knowledge of the essential information necessary to bring an action for damages.

Post-Directive regime

With the entry into force of Article 74.1 of the LDC, as amended by Royal Decree-Law 9/2017 implementing the Damages Directive, the limitation period was extended to five years. This period begins when the claimant knows or can reasonably be expected to know: (a) the conduct and the fact that it constitutes an infringement of competition law, (b) the harm caused by said infringement, and (c) the identity of the infringer (Article 74.2 of the LDC).

Transitional regime and non-retroactivity

The substantive rules of the Damages Directive on limitation periods do not have retroactive effect. However, if, at the date of expiry of the transposition period for the Directive (27 December 2016), the limitation period under the previous regime had not expired, the new five-year period applies to actions not yet time-barred (see CJEU, 22 June 2022, C-267/20, DAF & Volvo). Actions already time-barred under the old regime cannot be revived.

Impact of NCA Decisions on Limitation Periods

Requirement of a final decision

Even before the judgment from the ECJ in Case C/21/24, Nissan Iberia, the Spanish Supreme Court has recently established that, in follow-on actions based on a Spanish NCA decision, the limitation period does not begin to run until the decision becomes final. According to the Supreme Court, only at that point does the injured party possess the full set of factual and legal elements necessary to litigate, including certainty as to the existence and scope of the infringement (judgment No 889/2025 dated 5 June, ECLI:ES:TS:2025:2621 and judgment No 971/2 025, dated 17 June, ECLI:ES:TS:2025:2857, both issued in the envelopes cartel litigation). However, this does not prevent the filing of claims before a Final Decision exists; a situation that has arisen often so far but which may change after these Supreme Court rulings.

No effect of press releases or web publication

The mere publication of a press release or the availability of the NCA’s decision on its website does not suffice to trigger the limitation period. The CJEU and Spanish courts have repeatedly held that it would be unreasonable to expect injured parties to monitor such publications or to consider themselves in possession of all necessary information before the decision is final and all appeals are exhausted.

The duration of private antitrust litigation is highly variable and depends on numerous factors, including the complexity of the case, the volume of evidence or the number of parties involved.

The time taken to reach judgment in first instance can vary, but in complex antitrust cases, it is not uncommon for the process from filing to first-instance judgment to take between one and two years. The appellate process can add an additional one to three years, or more, to the overall duration, especially if the case reaches the Supreme Court or involves preliminary references to the Court of Justice of the European Union.

As mentioned in 1.2 Recent Developments, a draft law on collective actions is still in the first stage of the legislative process. The question of whether the law (if passed as it is) covers collective actions for damages arising from antitrust infringements has been a subject of debate.

In any case, the draft law would only be applicable for class or collective actions on behalf of consumers.

In the next sections responses will be based on the current version of the draft law and will assume – for the purposes of this chapter in the Antitrust Litigation guide – that antitrust litigation (on behalf of consumers) will be covered.

The draft law adopts, as a general rule, an opt-out system. This means that all consumers affected by the conduct at issue would automatically be included in the collective action and bound by its outcome, unless they expressly declare their wish to be excluded within the period established by the court.

Exceptionally, the court may decide to apply an opt-in system – where only those who expressly request to be included are bound – when the value of the claim for each beneficiary exceeds EUR3,000 or when circumstances so require for the proper administration of justice.

For consumers residing outside Spain, the opt-in system is always applied.

For injunctive actions (action to cease in a conduct), there is no need for consumers to opt in or out, as these actions are designed to protect collective interests without individual participation.

The draft law does not explicitly distinguish between direct and indirect purchasers in the context of collective actions. The focus is on the collective protection of consumers who have been harmed by the same infringing conduct, regardless of whether they are direct or indirect purchasers.

The definition of the affected class is based on the characteristics and requirements set by the court in the certification order, which may include both direct and indirect purchasers if they meet the criteria established for the class.

The law’s primary concern is the homogeneity of the claims and the causal link between the infringing conduct and the harm suffered, rather than the specific position of the purchaser in the distribution chain.

The draft law introduces a formal class certification procedure as a central feature of the collective action process.

After the filing and admission of the collective action, the court convenes a certification hearing (audiencia de certificación) to determine whether the action is appropriate for collective treatment.

The court must verify the homogeneity of the claims, the existence of a common infringing conduct, the collective harm, and the causal link, ensuring that individual factual or legal issues do not predominate.

The court also examines the legitimacy of the claimant entity and the adequacy of the proposed class definition. Only if these requirements are met will the court issue a certification order, which defines the scope of the class and the object of the proceedings.

If certification is denied, no further collective action on the same subject matter may be brought. The certification order is published and subject to appeal.

Jurisdiction in Competition Damages Litigation

Jurisdiction is primarily determined by the rules of the LEC and, where applicable, by European Union regulations. For cases involving cross-border elements within the EU, Regulation (EU) No 1215/2012 (Brussels I bis) may apply, particularly when the defendant is domiciled in a member state. However, if the defendant is domiciled in Spain, Spanish domestic rules prevail.

Applicable Law in Competition Damages Litigation

The determination of the applicable law in competition damages claims is governed by both national and EU law. For cross-border cases within the EU, Regulation (EC) No 864/2007 (Rome II) on the law applicable to non-contractual obligations applies.

According to Article 6(3)(a) of Rome II, the law applicable to a non-contractual obligation arising out of a restriction of competition is the law of the country where the market is, or is likely to be, affected.

In the Spanish context, both LDC and LEC would apply for substantive and procedural aspects of the action, respectively. Also, see 1.1 Current Framework for Private Antitrust Litigation in the context of the applicable regime depending on whether the infringement took place before or after the transposition of the Damages Directive.

In actions for damages arising from anti-competitive practices, Spanish civil procedure provides a specific regime for the disclosure of documents, regulated in Article 283 bis LEC, which closely follows Article 5 of the Damages Directive.

Upon a reasoned request by a claimant, which must include reasonably available facts and evidence sufficient to justify the viability of the action, the court may order the defendant or a third party to disclose relevant evidence in their possession. The court may also, at the request of the defendant, order the claimant or a third party to disclose relevant evidence.

The request must be as specific and limited as possible, both in terms of the pieces or categories of evidence sought, and the court will assess proportionality, taking into account the legitimate interests of all parties and third parties, the scope and cost of disclosure, and the presence of confidential information. The court may also adopt measures to protect confidentiality, such as redacting sensitive passages, holding hearings in camera, or limiting access to certain persons.

The procedure is adversarial. The party against whom disclosure is sought is given the opportunity to be heard, and a hearing is held within ten days. The court will decide by means of an order (auto), which is subject to appeal. If the order is made prior to the filing of the main claim, the claimant must file the claim within 20 days of the completion of the disclosure; otherwise, the court may order the return of the disclosed materials and prohibit their use in other proceedings.

If a party unjustifiably refuses to comply with a disclosure order, the court may draw adverse inferences, such as considering the relevant facts as admitted, or may impose fines.

Legal professional privilege is expressly protected in Spanish civil procedure. When ordering the disclosure of evidence, the court must give full effect to the rules of confidentiality governing communications between lawyer and client, as well as any other applicable secrecy obligations.

Leniency statements and settlement submissions made to competition authorities are subject to special protection from disclosure. The court may never order the disclosure of leniency statements or settlement submissions (as defined in the relevant competition law) at any stage of the proceedings.

If a party requests access to evidence to verify whether it falls within the protected categories, the court may, with the assistance of the competition authority, review the material, but will not allow access to the parties or third parties. Any evidence obtained in violation of these restrictions is inadmissible in actions for damages arising from competition law infringements.

The process for hearing witnesses is governed by the LEC.

Any party may request the testimony of individuals who have knowledge of disputed facts relevant to the case. The following steps and guarantees apply.

• Proposal and designation – parties must propose their witnesses, specifying their identity, profession and address, or any other identifying information that allows for their citation (Article 362).
• Limitation – there is no strict limit to the number of witnesses, but the costs for more than three witnesses per disputed fact are borne by the proposing party. The court may also dispense with further testimony if it deems the matter sufficiently clarified (Article 363).
• Summoning and appearance – witnesses are summoned to appear at the hearing. If a witness resides outside the court’s jurisdiction, their testimony is preferably taken via videoconference; if not possible, it may be taken at their domicile, with or without the parties’ presence, depending on circumstances (Article 364).
• Oath and examination – before testifying, each witness must swear or promise to tell the truth, being warned of the penalties for perjury (Article 365). The court initially questions the witness regarding their identity, relationship to the parties, and any circumstances that may affect their impartiality (Article 367).
• Questioning – the party who proposed the witness examines them first, followed by the other parties. Questions must be clear, precise and not include value judgments. The court rules on the admissibility of questions in the same act (Articles 368–370).
• Impartiality and tachas – parties may challenge (tachar) witnesses for reasons such as kinship, dependency, interest in the case or enmity. Challenges must be substantiated and may be opposed by the other parties (Articles 377–379).
• Documentation and valuation – testimonies are recorded, preferably by audio or audiovisual means, ensuring authenticity and integrity. The court evaluates witness statements according to the rules of sound judgment, considering the witness’s knowledge, impartiality and any challenges raised (Articles 374, 376).

The process for hearing expert witnesses is also governed by the LEC, as follows.

• Purpose and appointment – expert evidence is admitted when scientific, technical, or practical knowledge is required to clarify facts. Parties may submit expert reports with their initial pleadings or request the court to appoint an expert (Articles 335–339).
• Expert reports – parties must submit expert reports in writing, accompanied by supporting documents or materials. If a party cannot provide the report with the initial pleading, it must announce its intention to do so and submit the report as soon as possible, and at least five days before the preliminary hearing or within 30 days of the initial pleading in summary proceedings (Articles 336–337). For the plaintiff to have this right, they will also be required to justify that the defence of their rights did not allow for delaying the filing of the claim until such time as the expert report could be obtained.
• Judicial appointment – if a party requests a court-appointed expert, the court selects one from official lists provided by professional associations, by lot and in order. The expert must accept the appointment and swear or promise to act objectively (Articles 339–342). Since official lists for economic experts include all types of economists, even if they do not have the appropriate expertise for antitrust disputes, this method is considered to be extremely inefficient.
• Expert’s duties – the expert must act with the utmost objectivity, considering both favourable and unfavourable aspects in respect of all parties, and is warned of criminal penalties for breach of duty (Article 335).
• Hearing and ratification – parties may request the expert’s appearance at the hearing to explain or clarify their report, answer questions, or respond to objections. The court may also require the expert’s presence if it deems it necessary for understanding the report (Articles 346–347).
• Cross-examination and critique – parties and their counsel may question the expert, request clarifications, and even have their own experts critique the opposing expert’s report. The court may also pose questions (Article 347).
• Challenges (tachas) and recusal – experts may be challenged for lack of impartiality or other grounds and, in the case of court-appointed experts, may be recused under specific circumstances (Articles 124, 343–344).
• Valuation – the court assesses expert evidence according to the rules of sound judgment, considering the expert’s qualifications, the reasoning of the report and any challenges or contradictions (Article 348).

Assessment of Damages

Damages are assessed with the objective of achieving full compensation for the harm suffered by the claimant as a result of the infringement.

The guiding principle, as established both in national law (notably Article 1902 of the Civil Code and Article 72 of the LDC) and in line with Article 3 of the Damages Directive, is to restore the injured party to the position they would have been in had the infringement not occurred. This encompasses both actual loss (damnum emergens) and loss of profit (lucrum cessans), as well as the payment of interest.

The quantification of damages in competition cases is particularly challenging due to the need to construct a counterfactual scenario.

Spanish courts, following both national and EU jurisprudence, have recognised the inherent evidentiary difficulties in such cases. As a result, courts are empowered to estimate the amount of damages when it is practically impossible or excessively difficult to quantify them precisely based on the available evidence. This judicial discretion is exercised provided that the existence of harm is established, even if the precise amount cannot be determined (see, for example, the Supreme Court’s consistent jurisprudence and the application of Article 76.2 of the Competition Act).

Recent case law from the Supreme Court consistently applied since June 2023, has confirmed that the presentation of an expert report by the claimant, even if not entirely convincing, may suffice to shift the burden and justify the use of judicial estimation. According to this case law initiated in June 2023, the Supreme Court has established that the minimum overcharge arising from the trucks case is 5%. This rule has been applied by certain courts to other cases, but the Supreme Court has not confirmed (or denied) it for such other cases.

Exemplary or Punitive Damages

Exemplary or punitive damages are not available under Spanish law. The principle of full compensation strictly prohibits overcompensation, including punitive, multiple, or exemplary damages. The compensation awarded must be limited to the actual harm suffered, including both direct and consequential losses, but may not exceed this amount.

Availability of the “Passing-On” Defence

The “passing-on” defence is recognised and available in Spanish antitrust litigation. See 2.5 Pass-On Defence for further details.

Rules Applicable to Interest on Damages

Interest is considered an essential component of full compensation in competition damages cases. Both EU and Spanish law require that interest be awarded to ensure that the injured party is fully restored to the position they would have occupied absent the infringement. The prevailing approach, as confirmed by the Supreme Court and lower courts, is that interest should accrue from the date the damage occurred (typically, the date of purchase or payment of the overcharge) until the date of actual payment of the compensation.

As mentioned in 1.2 Recent Developments, the Supreme Court resolved in two judgments in June 2025 (judgment No 889/2025 dated 5 June, ECLI:ES:TS:2025:2621 and judgment No 971/2 025, dated 17 June, ECLI:ES:TS:2025:2857, both issued in the envelopes cartel litigation) that compound interest up to the date of the claim is applied in the context of damages actions for competition law infringements except if in the specific case it is proven that there was no lost opportunity cost or that the application of compound interest would result in overcompensation.

The Supreme Court establishes that compound interest is to be applied exclusively to the period between the occurrence of the damage (ie, the moment when the overcharge was paid as a result of the cartel) and the date of the filing of the claim.

However, for the period between the filing of the claim and the judgment of first instance, the court holds that the legal interest rate shall apply, but only in its simple form (simple interest), not compounded. This is in line with the general rule under Spanish law, which provides for the accrual of simple legal interest on monetary claims from the moment of the claim (interpelación judicial).

From the date of the first instance judgment onwards, the statutory interest for procedural delay (interés de mora procesal) which is the legal interest plus 2%, as provided for in Article 576 of the LEC, becomes applicable. This interest is also simple, not compounded, and is designed to incentivise prompt compliance with judicial decisions and to compensate the creditor for any further delay in the satisfaction of the judgment debt.

The Supreme Court is clear that, while compound interest is justified for the pre-litigation period due to the specific economic harm suffered, the subsequent periods are governed by the standard legal regime for interest on monetary judgments, which does not contemplate compounding unless expressly stipulated.

Article 73.1 of the LDC, as currently in force as from 27 May 2017, codifies the principle of joint and several liability for all participants in collective anti-competitive conduct, in line with Article 11(1) of the Damages Directive.

Furthermore, Articles 73.2 and 73.3 of the LDC reflect the special regime for immunity applicants (leniency recipients), limiting their joint and several liability to their direct and indirect purchasers or suppliers, and otherwise only for the harm they themselves caused, unless the injured party cannot obtain full compensation from the other infringers.

As regards actions arising from infringements that happened before 27 May 2017, the Spanish Supreme Court has consistently affirmed that, in cases where multiple undertakings have participated in anti-competitive conduct and it is not possible to individualise each participant’s contribution to the damage, joint and several liability shall also apply. This is a case law construction, the so-called solidaridad impropia which needs to be declared in the judgment itself after a case-by-case assessment. However, there is a minority trend in certain courts to deny joint and several liability in antitrust damages cases (particularly, the trucks and the car cases) under the Civil Code (ie, where the Damages Directive rules are not applicable ratione temporis), on which the Supreme Court must decide shortly.

Article 14 LEC allows the defendant to request the intervention of a third party in the proceedings. However, since the LEC requires that the defendant’s right to bring a third party is expressly granted by a law, this option has not been generally possible for antitrust litigation (although with some rare exceptions).

On the other hand, Article 13 LEC provides for the voluntarily adhesive intervention by a third party (typically another participant in the conduct) who wishes to join ongoing litigation if they have a direct and legitimate interest in the outcome. If the intervention is admitted, as it usually is, the third party becomes part of the proceedings and can defend the claims formulated by the defendant or present their own claims if they have the procedural opportunity to do so. They can also make necessary allegations for their defence, even if these were not made at earlier procedural moments.

Finally, in cases of joint and several liability, a defendant who has paid more than his share of the damages may seek contribution from other co-liable parties. This is typically done through a subsequent action for reimbursement (acción de regreso), once the initial judgment has been satisfied.

Availability of Injunctive Relief in Antitrust Damages Litigation

Injunctive relief is available in the context of Spanish civil litigation, including cases concerning damages arising from anti-competitive practices. The LEC provides for a range of interim and precautionary measures (medidas cautelares) designed to preserve the effectiveness of the final judgment, prevent irreparable harm, or maintain the status quo during the pendency of the proceedings.

Test for Granting Injunctive Relief

The applicant must satisfy the court of three cumulative requirements.

• Fumus boni iuris (appearance of good right) – the applicant must demonstrate a prima facie case, showing that the underlying claim (eg, for damages due to anti-competitive conduct) is not manifestly unfounded.
• Periculum in mora (risk in delay) – there must be a real risk that, if the injunction is not granted, the applicant’s rights will be irreparably harmed or the effectiveness of the final judgment will be compromised. This might be the case for stand-alone actions where the cessation of the conduct is sought together with the appropriate compensation of the harm caused.
• Proportionality and balance of interests – the court will weigh the interests of the parties and third parties, ensuring that the measure is proportionate and does not cause undue harm.

Process for Obtaining an Injunction

The process is as follows.

• The application for interim relief can be filed before or during the main proceedings.
• The applicant must provide detailed evidence supporting the three requirements above.
• The court may require the applicant to provide a security (caución) to cover potential damages to the respondent if the injunction is later found to have been unjustified.
• The court will generally summon the parties to a hearing before deciding, unless the applicant requests and justifies the need for an ex parte (without notice) injunction.

Ex Parte Injunctions and Additional Requirements

An injunction may be granted without notice to the other party (ex parte) if the applicant can demonstrate that giving notice would frustrate the purpose of the measure (for example, if there is a risk that evidence will be destroyed or assets dissipated).

Speed of Relief

The courts are empowered to act with urgency in these matters. In practice, if the application is well-founded and the risk of harm is imminent, an injunction can be granted within days, or even hours, especially in ex parte cases.

Consequences for Applicants if the Injunction Fails at Trial

If the applicant obtains an injunction but ultimately fails in the substantive proceedings, the respondent may claim compensation for any damages suffered as a result of the injunction. This is secured by the applicant’s mandatory provision of a security (caución), which the court may execute to compensate the respondent. The applicant’s liability for damages is a fundamental safeguard to prevent abuse of interim relief.

Alternative dispute resolution (ADR) mechanisms are available. The Spanish legal system, in line with European Union directives and principles, recognises and encourages the use of ADR as a means to resolve disputes efficiently and to facilitate access to justice, particularly in complex matters such as competition law infringements.

The LEC explicitly contemplates the possibility of parties resorting to ADR mechanisms. This includes mediation, conciliation and other forms of out-of-court settlement. The aim is to provide parties with flexible, less adversarial, and potentially faster alternatives to judicial proceedings, which can be particularly beneficial given the technical complexity and evidentiary challenges often present in competition damages claims.

As from 3 April 2025, the LEC provides for (i) the requirement for the plaintiff to have tried its claim to be previously decided by an ADR; and (ii) some negative consequences in terms of legal costs for the party whose conduct in the ADR is considered an abuse of the public justice service.

There will be no award of costs in favour of the party that has refused to participate in the ADR without fair cause, even if it wins the case. In cases with a partial award, the party that did not participate in the ADR may be ordered to pay the costs. If the courts consider that any of the parties has acted in violation of the rules of procedural good faith or with abuse of the public service of justice, they may impose, in a separate piece, by reasoned agreement and respecting the principle of proportionality, a fine that may range from EUR180 to EUR6,000, without in any case exceeding one third of the amount of the litigation. If the courts understand that the action contrary to the rules of good faith or with abuse of the public service of justice could be imputable to any of the professionals involved in the process, without prejudice to the provisions of the preceding paragraph, they will transfer such circumstance to the respective professional associations in case the imposition of some type of disciplinary sanction could be appropriate.

In Spain, there is no prohibition against such arrangements, provided that they do not infringe public policy or ethical rules.

One of the most significant developments in recent years in Spain has been the emergence of third-party litigation funding for antitrust damage actions. This mechanism allows claimants to pursue complex and costly antitrust damages actions without bearing the full financial risk. A third-party funder, typically a specialised investment entity, covers the legal costs and, in return, receives an agreed share of any damages awarded or settlement reached. This arrangement is particularly prevalent in collective or mass claims, such as those arising from large-scale cartels.

Funding is generally available in the following circumstances.

• Meritorious claims – funders conduct a rigorous assessment of the merits of the claim, the likelihood of success, and the potential quantum of damages. Only claims with a strong legal and evidentiary basis are likely to attract funding.
• High-value or collective actions – given the significant costs associated with antitrust litigation (expert reports, economic analysis, lengthy proceedings), funders are more inclined to support cases involving substantial damages or a large group of claimants, which increases the potential return on investment.
• Follow-on actions – in cases where a prior NCA decision has established the infringement, the risk profile is lower, making such actions more attractive to funders. The existence of a binding decision on liability reduces the litigation risk and enhances the prospects of recovery.
• Jurisdictions permitting funding – the legal framework must allow for third-party funding. In Spain and most EU jurisdictions, there is no prohibition against such arrangements, provided that they do not infringe public policy or ethical rules.

In Spanish civil litigation, including actions for damages arising from anti-competitive practices, the general rule is that costs are awarded according to the principle of “loser pays” (criterio objetivo del vencimiento). This is codified in Article 394 of the LEC. The losing party is typically ordered to pay the legal costs of the prevailing party, unless the court finds that the case presented serious factual or legal doubts, in which case each party may bear its own costs.

In instances of partial success – where the claimant’s demands are only partially upheld – each party is generally required to pay its own costs and half of the common costs, unless one party is found to have litigated recklessly.

Recent jurisprudence, including the interpretation of the ECJ in its judgment of 16 February 2023, C-312/21, Tráficos Manuel Ferrer, has confirmed that the Spanish system of costs, as set out in Article 394 LEC, is compatible with the principle of effectiveness under EU law, provided it does not render the exercise of the right to full compensation for antitrust harm practically impossible or excessively difficult. The CJEU also clarified that, in cases of partial success, it is reasonable for each party to bear its own costs and a share of the common costs, especially if the generation of those costs is attributable to the party’s conduct, such as making excessive claims or pursuing the litigation in an unreasonable manner.

Spanish procedural law does not provide for a general mechanism equivalent to the Anglo-Saxon “security for costs” order, whereby a claimant may be required to provide a financial guarantee to cover the defendant’s potential legal costs with the exception pointed out when explaining the security (caución) required when an injunction is requested (see 10.1 Injunctions). The security is typically provided in the form of a cash deposit, bank guarantee, or other means acceptable to the court. The party required to provide security must do so within the time and in the manner specified by the court; failure to comply may result in the denial of the requested measure.

Appeals are available in the context of litigation for damages arising from anti-competitive practices in Spain. The procedural framework is governed primarily by the LEC, and the structure of appeals is consistent with general civil litigation, albeit with certain nuances due to the complexity and public interest inherent in competition law cases.

Initial claims for damages are typically brought before the Commercial Courts (Juzgados de lo Mercantil). Judgments rendered by these courts may be appealed to the relevant Provincial Court (Audiencia Provincial). Subsequently, further appeals may be lodged before the Supreme Court (Tribunal Supremo), subject to the admissibility criteria established by law.

The first appeal (recurso de apelación) is generally available on both points of fact and law. The appellant may challenge the assessment of evidence, the application of substantive or procedural law, and the reasoning of the first instance judgment. The Provincial Court conducts a full review of the case, including factual findings and legal conclusions.

After the Provincial Court’s decision, parties may seek recourse to the Supreme Court through a cassation appeal (recurso de casación). This is limited to points of law. The Supreme Court will only admit the appeal if it raises issues of legal significance, such as the interpretation of substantive or procedural law which has not already been the subject of case law, or if the judgment contradicts established Supreme Court or European Court of Justice jurisprudence.

The cassation appeal does not allow for a review of the facts as established by the lower courts, but rather focuses on the correct application and interpretation of the law.

Future Legislative and Case Law Developments

In the realm of civil antitrust litigation, Spain has seen significant legislative developments, particularly with the changes made in the LDC and LEC as a consequence of the transposition of the Damages Directive.

A significant development in case law has also occurred since June 2023. However, further enhancements of the criteria used by judicial powers to estimate damages are still required. 

As mentioned in 1.2 Recent Developments, a draft law on collective actions on behalf of consumers was published in the Parliament’s Gazette in March 2025. The question of whether the law (if passed as it is) covers collective actions for damages arising from antitrust infringements has been a subject of debate.

Focus on Specific Areas

Civil antitrust litigation in Spain is likely to increasingly focus on specific sectors, particularly those with significant consumer impact and technological advancements. Digital markets and tech industries are expected to be at the forefront, given the rapid growth and the potential for anti-competitive practices in these areas. Consumer-facing businesses, including e-commerce and digital platforms, will likely see heightened scrutiny. Additionally, the life sciences and pharmaceutical sectors may experience increased litigation due to the critical nature of these industries and their impact on public health and welfare. The complexity and high stakes involved in these sectors make them prime candidates for antitrust enforcement.

Shift from Cartel Damages to Dominance/Monopolisation Cases

While cartel damages have historically been a significant focus in antitrust litigation, there is an anticipated shift towards cases involving dominance and monopolisation. This shift is driven by the evolving market dynamics and the increasing prevalence of dominant players in various industries, particularly in the tech sector. The enforcement against abuse of dominance and monopolistic practices will likely become more prominent as regulators and private claimants seek to address the competitive imbalances and ensure fair market conditions.

Increase in Cross-Border Civil Antitrust Litigation

There is a growing trend towards cross-border civil antitrust litigation, reflecting the global nature of many industries and the interconnectedness of markets. Claimants are increasingly adopting cross-border strategies to address anti-competitive practices that have transnational effects. This trend is facilitated by the harmonisation of competition laws across the European Union and the provisions that allow for the recognition and enforcement of judgments across member states. The ability to pursue claims in multiple jurisdictions enhances the effectiveness of antitrust enforcement and provides a robust mechanism for addressing complex, multi-jurisdictional anti-competitive conduct.

In summary, the landscape of civil antitrust litigation in Spain is evolving, with legislative developments aimed at strengthening private enforcement, a focus on high-impact sectors, a shift towards dominance cases, and an increase in cross-border litigation strategies. These trends reflect the dynamic nature of competition law and the ongoing efforts to ensure fair and competitive market conditions.