Contributed By Uría Menéndez
Spain has recently become a leading jurisdiction in antitrust litigation, with a number of judgments issued in cartel damages claims in the last three to four years. In previous years, however, Spain had some experience with nullity claims and damages claims resulting from distribution agreements with vertical restraints. The situation has drastically changed, and Spain is currently a very attractive jurisdiction for damages claims, with thousands of claimants and proceedings concerning cartel cases and abuse of dominant positions.
Active Antitrust Litigation Cases in Spain
Spain has several active antitrust cases giving rise to relevant damages claims.
Developments in Spain Regarding Antitrust Private Litigation
In May 2017, Spain transposed 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 EU (Directive 2014/104); this was five months after the deadline to transpose the Directive expired. The transpositional rules were crystal clear: substantive provisions transposed in Articles 71-81 of the Spanish Defence of Competition Law (Ley 15/2007, de 3 de julio de defensa de la competencia ‒ LDC) could not be applied retroactively, while procedural provisions (ie, rules on disclosure of evidence) transposed into the Spanish Civil Procedure Law (Ley 1/2000, de 7 de enero, Enjuiciamiento civil ‒ LEC), in particular Articles 283-bis (a) to 283-bis (k) were applicable to actions filed after 27 May 2017.
Courts must adjudicate active cases by applying the general damages claims regime and including the new provisions on disclosure of evidence. Consequently, lower courts have awarded damages applying general damages claims rules, namely Article 1902 Spanish Civil Code (Real Decreto Ley de 24 de julio de 1889 por el que se publica el Código Civil ‒ CC), and the Supreme Court’s case law developing it, complemented by general principles of tort law, EU law, and ECJ case law.
Spanish antitrust litigation is heavily affected by the preliminary rulings issued by the ECJ regarding certain aspects of competition law damages actions. Indeed, many of these preliminary rulings were requested by Spanish judges and almost all refer to the so called “trucks case”. In particular, the latest and most relevant cases for Spain are the following.
CJEU, C-30/20, RH v AB Volvo
This preliminary ruling dealt with issues regarding jurisdiction, the interpretation of the concept “where the harmful event occurred or may occur” included within Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Regulation Brussels I recast”) and, in particular, the scope of the jurisdiction granted by Regulation Brussels I recast.
The Court ruled that the courts with jurisdiction are those located in the country where the claimant purchased the goods affected by the infringement or where the claimant has its registered offices. Furthermore, the Court clarified that the jurisdiction granted by Article 7(2) is both international and territorial.
CJEU, C-882/19, Sumal v Mercedes Benz Trucks España
In this preliminary ruling, the Court was asked whether it is possible to bring a damages claim against a subsidiary which was not an addressee of the infringement decision for the harm caused by the parent company which participated in a cartel.
The Court ruled that liability is joint and several within the same undertaking and the subsidiary can be held liable for the harm caused by the parent company provided that it belonged to the same economic unit at the time of the infringement and the infringement affected the same products and services offered by the subsidiary. Nevertheless, the subsidiary can challenge this liability on two grounds that:
CJEU, C-267/20, Volvo and DAF
The Court had to decide whether the following were substantive or procedural provisions:
It also had to decide on the applicable ratione temporis to the trucks cartel litigation in Spain.
The Court, taking into account the fact that Spain transposed the Directive late, ruled as follows.
Actions for damages arising from a breach of Spanish or EU competition law have to be filed with commercial courts.
The legal basis for competition law damages claims, irrespective of whether they are collective actions, depends, as a general rule, on when the infringement took place.
Damages Claims Available
In Spain, standalone, follow-on, and hybrid claims are available.
In standalone claims, claimants must file a double claim.
Claimants only have to bring the damages claim and rely on a decision of a competition authority (eg, the EC, the CNMC, or a regional competition authority) to establish the infringement. Decisions of competition authorities from other EU member states can also be used to declare the existence of the infringement. In these cases, claimants will focus on (b), (c), and (d) above.
The distinction of whether the decision is final after it was reviewed by a court, or whether it is final because the time limits for appeal were exhausted, is irrelevant if the claim is based on Articles 71–81 of the LDC. In these cases, final infringement decisions bind the court adjudicating damages claims regarding the infringement and its temporal and geographic scope. For further information on this, see 2.3 Decisions of National Competition Authorities.
Hybrid claims are also available. Claimants rely on the infringement decision, but only as “qualified” evidence of the infringement (not binding the civil court). Claimants shall file a declarative claim for the infringement and also a claim for the award damages.
Another type of hybrid claim is one that relies on a binding sanctioning decision for a certain period of the infringement and for another, subsequent period demonstrates for the first time in the civil courts the continuation of the infringement and the damages arising from both periods (the first is a sanctioned period, and the second is a non-sanctioned period).
Damages claims have to be brought before commercial courts.
Commercial Courts in Spain
Commercial courts are located in the capital of each province and judges are specialists in commercial matters.
By law, these courts are allocated cases relating to commercial matters, and competition law damages claims belong to that group. However, in some provinces there are no full-time commercial courts, and a first instance court (ie, a general civil court) assumes its functions and is allocated these cases.
Transfer of Cases Between Courts
The procedure to transfer cases in Spain depends on the transferral grounds, which can be ratione materiae if the case should have been allocated to a specialist court, or may be based on territorial jurisdiction.
Transferral ratione materiae
When the case is allocated to a court, the court should ex officio assess whether it has jurisdiction ratione materiae. If the assessment’s result is negative, it will issue a court order declaring that the court has no jurisdiction and identifying the court that has jurisdiction. If the court’s assessment is positive and it declares it has jurisdiction ratione materiae, the defendant will have to file a plea as to jurisdiction of the court to challenge it.
Transferral on territorial grounds
If the court where the claim has been brought has no territorial jurisdiction, it cannot order the transfer ex officio. The defendant will have to file a plea as to jurisdiction or accept the court’s lack of jurisdiction and file a new claim before the correct court.
Filing pleas as to jurisdiction
Defendants may file pleas as to jurisdiction during the first ten days of the term to file the statement of defence and it suspends the latter until jurisdiction is declared. Defendants will state the court to which they believe the case should be allocated. Claimants and other defendants (if any) will be allowed to argue for, or against, the jurisdiction of the court to which the case was initially allocated and the proposed new court with jurisdiction.
The parties may appeal the court order whereby the court refrains from dealing with the case. However, when the court recognises its own jurisdiction, the parties may raise the issue when appealing the court’s judgment if the lack of jurisdiction is ratione materiae.
The binding effect of infringement decisions by national competition authorities depends on the competition authority of origin and whether the decisions are final.
Decisions of the CNMC
Under Article 75(1) of the LDC, infringement decisions of the CNMC that are final (because they have been confirmed by a review court or they have not been appealed) bind the civil court that has to adjudicate on a damages claim. The binding effect extends to the legal qualification of the infringement itself and its material, personal, temporal, and geographic scope. It does not extend to the “effects” of the infringement (if any) declared by the CNMC.
For those cases, Article 75 of the LDC is not applicable to ratione temporis; the binding effect differs between infringement decisions that have not been appealed and those upheld by review courts. According to the Spanish Supreme Court, the former are “strong pieces of evidence” (“instrumento de gran convicción”) (Supreme Court, judgment 634/2014). However, the latter bind the court where the damages claim has been filed (Supreme Court, judgment 651/2013).
Decisions of National Competition Authorities of Other States
Under Article 75(2) of the LDC, final infringement decisions of national competition authorities of other EU member states do not bind the Spanish civil court, but they are not merely evidence either. Claimants may rely on the decision because it allows the existence of the infringement to be presumed, though defendants can rebut this.
When Article 75(2) of the LDC is not applicable ratione temporis, these infringement decisions are not binding either. Claimants can, however, use them as relevant pieces of evidence to build the claims.
Decisions of the EC
Infringement decisions of the EC bind civil courts adjudicating in damages claims from the moment they are adopted (even if pending on appeal), according to Article 16(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (“Regulation 1/2003”). The reason for this is that national courts cannot issue judgments that run counter to EC decisions. The legal qualification and the material, personal, temporal, and geographic scope of the EC decision bind the court.
Commitment decisions under Article 9 of Regulation 1/2003 (which are not sanctioning decisions) will be considered prima facie evidence (CJEU, C-547/16, Gasorba).
Competition Authorities’ Intervention Before Civil Courts
Spanish competition authorities and the EC may intervene in competition law damages proceedings as an amicus curiae. The CNMC has lately been requested to advise upon the damages quantification criteria used by economic experts, though it is not empowered to quantify the damages award itself or to act as an impartial economic expert appointed to support courts.
According to the general principles of Spanish civil and commercial law, claimants have the burden of proof for those elements that support their claim. Defendants have the onus of proving the arguments leading to the dismissal of the claim.
Competition law damages claims, irrespective of whether they are standalone or follow-on, follow the same rules, and claimants bear the burden of proving the elements of the claim. Claimants, however, may rely on the infringement decision to prove the infringement when the claim is follow-on and, depending on the decision’s content and degree of detail (for instance, a decision declaring an abuse of dominance against one particular entity), to prove the causal link. However, they will have to bring evidence on the other elements of the claim. Their burden is further alleviated when Article 76(3) of the LDC applies ratione temporis to cartel infringements in particular, as it provides for a rebuttable presumption that cartels cause harm. In this scenario, claimants who are direct clients of the infringing parties will only focus on quantifying the damage, while defendants will have to rebut the presumption.
If a defendant argues that claimants passed on the overcharge to their customers, they may raise the pass-on defence, and the burden of proof will be on the defendant.
Both direct and indirect purchasers may bring damages claims against infringers. Potential claimants base their claims on Article 1.902 of the CC or Article 72 of the LDC, depending on the application ratione temporis of the latter regime.
Article 79 of the LDC, a specificity of the new regime, includes a rebuttable presumption favouring indirect purchasers when bringing a damages claim based on passing-on. The overcharge will be presumed to have been passed on to them if the defendant infringed competition law, the infringement caused an overcharge to the direct client and the indirect purchaser acquired goods or services affected by it. Defendants, however, may rebut this presumption by arguing that there has been no actual pass-on downstream.
Typical Duration of Proceedings
There is no average or typical duration of competition law damages claims proceedings. It varies depending on the facts of the case, the prior experience of the court dealing with this kind of claim, and the evidence submitted by the parties.
The Relation Between Damages Claims and Parallel Investigations by the NCA
Since competition law damages claims can be standalone, their outcome can be independent from that of the public enforcement by the competition authority. However, defendants may request a stay of proceedings until the pending public enforcement procedure finishes and courts may accept it after hearing the parties’ opinion. Although it is not legally obliged to, the court may agree to stay the proceedings either in the first instance or when the case is under appeal (Articles 434(3) and 465(6), LEC, respectively); the court must undertake all steps of the proceeding but for issuing the final ruling.
When the affected competition authority is the EC or when the case is under review of the General Court or the European Court of Justice, the ECJ judgment in Masterfoods (CJEU, C-344/98, Masterfoods) must be taken into account. There, the ECJ ruled that it is for the national court to decide whether to stay proceedings or not. However, if the damages claim’s outcome depends on the validity of the EC’s decision, the court will have to stay the proceedings.
At the time of writing, Spain has a judicial collective redress mechanism denominated as “collective actions”. The existing system is basically an opt-out system, in the sense that the Spanish Civil Procedure Law provides that a decision issued in a collective action is binding on all members of the class whether the court rules on the claim or dismisses it. However, at the same time, this system has important limitations. To start with, it has no certification process and the Spanish Civil Procedure Law does not establish any mechanism to allow represented consumers to opt-out (to avoid being bound by the decision on the collective claim and, therefore, to preserve their individual action).
Likewise, pursuant to the Spanish Civil Procedure Law, represented consumers are entitled to appear in the proceedings to contribute to the case by filing allegations that are supplementary to the collective action and to those allegations made in the lawsuit. However, this cannot be understood as an opt-in mechanism since, as noted, the consumer will be bound by the decision (whether or not the consumer appears in the proceedings in which the supplementary allegations are filed).
In that regard, Spanish law establishes specific procedures for publicising a lawsuit to facilitate any class member’s joinder to the claim on a supplementary basis.
The current regulation may suffer some changes in the future due to the approval of the Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (“Representative Actions Directive”) and the future modifications of the Spanish Civil Procedure Law that are still being discussed.
Although the Directive does not imply significant changes in the Spanish procedural regulation since, as noted, Spanish law already provides for the option to join the compensation remedy action to an injunction action, it may oblige the Spanish regulator to take important decisions on specific matters such as the standing of the entities permitted to file this type of action, the confirmation of the effects of the decision issued within this action, or the publicity of the action before being filed.
Taking into consideration that this type of action is intended to defend consumers’ rights and interests, both direct and indirect purchasers can be part of a collective action, provided that they are final consumers and the underlying factual issues are sufficiently similar with regard to the terms outlined in 3.2 Procedure.
Initially, the procedural standing to initiate a collective action under the Spanish Civil Procedure Law is not granted to a member of the class but to certain consumer associations and groups of aggrieved consumers.
In particular, if the number, identity and specific circumstances of the aggrieved consumers are determined or are easily determinable at the declaratory stage of the proceedings, both the consumer associations and the groups of aggrieved consumers by themselves can sue on behalf of all the aggrieved consumers. In this regard, a group of consumers has procedural standing when at least 50% of its determined potential members have joined it.
However, when those circumstances are not met, the procedural standing is limited to certain consumer associations. In this regard, only consumer associations that are members of the Spanish National Consumer Committee have legal standing to file legal actions on behalf of an undetermined number of consumers.
Moreover, in March 2014, Spanish parliament passed Law 3/2014 of 27 March, amending the 2007 Consumer Protection Law and adding new regulations on standing to initiate collective actions to the Civil Procedure Law. Pursuant to the new regulations, Spanish public prosecutors also have standing to initiate collective actions seeking compensation for consumers.
As noted in 3.1 Availability, there is no certification process under the Spanish regulation prior to initiating the proceeding itself. There is no express regulation of compliance requirements for class actions, such as numerosity, commonality, typicality, or the adequacy of representation. Although it is understood that actions can only be considered as class actions where the individual cases have underlying factual issues that are sufficiently common between the members of the group, this lack of regulation is problematic.
Although there is no specific legislation relating to the settlement of collective action cases and no judicial experience on class settlement has been reported to date, it may be understood, given the consequences of the settlement, that court approval is required for collective actions to be settled. In any case, it must be noted that a court can only reject a settlement if it affects the fundamental individual rights of any of the parties that cannot be waived or the interests of third parties.
As there is no provision that provides for a mechanism that entitles consumers to opt-out from the class action, there is no specific provision that provides for a mechanism by which class members can object and refuse to be bound by the settlement. Taking into consideration the lack of judicial experience, the way in which a court would manage a petition by a class member not to be bound by the settlement cannot be described. In principle, and owing to the lack of any specific regulation, Spanish courts may be inclined to allow those individuals who are members of the class to keep their individual rights to claim if they expressly request this before the court in which the settlement has been enforced.
Finally, due to the lack of regulation on class action settlements, there are no provisions on the need to publish settlement agreements. This may make it more difficult for class members to exercise their right not to be bound by the settlement agreement, should such right be finally accepted by the courts.
Under Spanish procedural law, when the claim is filed, the judge or the law clerk may assess ex officio:
Furthermore, at the request of the parties, the judge will assess whether the court has territorial jurisdiction over the case.
If the court assesses any of these issues, it will issue a court order either confirming its jurisdiction or indicating that it has no such jurisdiction. Any other matter is considered to be part of the merits of the case and they will be dealt with in the judgment.
If the damages claim has an international element, for example if the defendant’s headquarters are located outside of Spain, jurisdiction will be established according to the rules of Regulation Brussels I recast or Spanish private international law, depending on the states involved. If the claim is purely national, then jurisdiction will be established according to national rules on jurisdiction as set out in the Spanish Civil Procedure Law.
General forums – international and national disputes
As a general rule, claimants can file their actions in the courts:
Alternatives forums – international disputes
Article 7.2 of Regulation Brussels I recast has a specific provision for jurisdiction when it comes to torts: claimants may bring their claims where the harmful events occurred. According to the ECJ’s interpretation of “where the harmful event occurred or may occur” this place comprises:
The ECJ confirmed that the jurisdiction given by Article 7.2 of Regulation Brussels I recast provides both international and national jurisdiction (CJEU, C-30/20, RH v AB Volvo).
Alternatives forums – national disputes
Spanish national rules on jurisdiction have no specific provision for competition law damages claims, though Article 52.1.12 of the LEC has alternative forums for infringements of unfair competition rules. The Spanish Supreme Court has interpreted this provision analogously to establish jurisdiction in damages claims caused by anti-competitive conduct (Supreme Court, order of 15 June 2021 and, previously, order of 26 February 2019). According to this provision, the alternative forums are:
Under Spanish law, the applicable law in relation to a competition law damages claim is generally governed by the agreement between the parties. Otherwise, the law applicable to a competition law damages claim will be that of the place where the harm arose (lex loci delicti).
Rules on limitation periods depend on the applicable law to competition law damages claims. As explained in 1.1 Recent Developments in Antitrust Litigation, the point to be taken into account to set the applicable regime is the moment the action arises, taking into consideration whether it is still running when there is a change in the substantive regime.
General Principle and Plausible Regimes
The general principle is that people harmed by an infringement of competition law can file damages claims from the moment they know, or are reasonably expected to know, that they were victims of a competition law infringement, they suffered harm, and they know the identity of the infringer. Under the pre-Directive 2014/104 regime, this was the case irrespective of whether there had been a public enforcement procedure.
The extension of the limitation period depends on the applicable regime:
Setting the Dies a Quo
Under the application of the general regime, the dies a quo starts running when injured parties know, or are reasonably expected to know, that they were victims of a competition law infringement, they suffered harm, and they know the identity of the infringer. There is no requirement for the infringement to cease to set the dies a quo if the claimant has the necessary information.
The Court of Justice’s interpretation of the requirements of the principle of effectiveness in relation to setting the dies a quo in Volvo and DAF (CJEU, C-267/20, Volvo and DAF) added the following criteria and, thus, limitation periods cannot start running unless the following have taken place.
For claims against addressees of an EC decision, the limitation period will normally start running from the moment the summary of the decision is published in the Official Journal of the EU, though defendants may prove that the claimant was aware of the requirements before that date.
Under the application of Article 74 of the LDC, the dies a quo of any damages claim (irrespective of whether it is standalone or follow-on) starts running whenever the infringement ceased and the potential claimant knows, or should reasonably know, about the conduct and that it was an infringement of competition law, the harm suffered, and the identity of the infringer.
Interruption or Suspension of the Limitation Period
Under the application of the general regime of claims for damages caused by competition law infringements, judicial or extrajudicial claims interrupt the limitation period, provided that they are addressed to the infringer. Thus, the limitation period restarts on the day that the interruption occurred.
Under the application of Article 74 of the LDC, in addition to the general cause for interruption of judicial and out-of-court claims, the limitation period will be interrupted when one of the following occurs.
Disclosure Before and After the Transposition of Directive 2014/104
Before the transposition of Directive 2014/104, claimants could only file pre-trial proceedings to prepare the claim if the claimants’ situation fell under the scope of Article 256 of the LEC. For competition law damages claims, the only circumstance where this would be possible is to prepare a collective action against an infringer of competition law. Otherwise, there was no specific procedure for the disclosure of documents.
After the transposition of Directive 2014/104, apart from pre-trial proceedings, claimants and defendants can seek the disclosure of evidence from the (future) claimant or defendant or from third parties according to Articles 283-bis (a) and following the LEC.
Disclosure of Evidence: Procedure
When filing the request, claimants should identify the infringer, the infringement, the affected products, the identity of the affected direct or indirect purchasers, and the prices set for the products or services. The elements taken into account by the court when deciding whether to accept or deny the request are the following:
Whenever there is confidential information not protected by legal professional privilege or by virtue of being leniency or settlement materials, the court may provide “data rooms” so that only the parties to the proceedings can access it.
Disclosure can happen either as a pre-trial disclosure, with the subsequent obligation to bring the damages claim, or once the claim has been filed. In the former case, the court will have to assess its own jurisdiction regarding the damages claim itself. The requestor bears the costs of the access to evidence and will also be liable for the damages caused by the misuse of the information accessed. The court may ask the requestor of the disclosure, on behalf of the requested party, to provide a guarantee to compensate for both the costs of the disclosure and the potential damages.
Once the request has been filed, the court will submit the request to the requested party and other interested parties, and it will organise a hearing on the adequacy and appropriateness of the request. Then, the court will issue a court order either ordering the disclosure including the details regarding the procedure and its organisation or not ordering disclosure. If the requested party hinders access to the evidence disclosed, the court may:
Requestors cannot disclose confidential information accessed during this proceeding. If requestors breach the rules on confidentiality or use of evidence obtained, courts may:
According to Article 283-bis (b)(3) of the LEC, the court organising the disclosure of evidence must respect the legal professional privilege and, thus, privileged documents will be withheld from disclosure.
According to Article 283-bis (i) of the LEC, courts may grant access to the administrative proceeding before the competition authorities, provided that the requestor cannot reasonably find this evidence elsewhere once the administrative proceeding has ended. However, courts cannot order the disclosure of leniency materials and settlement requests (Article 283-bis (i)(6) of the LEC).
Witness evidence is permitted in antitrust litigation. The parties propose the witnesses to the court, which evaluates how relevant and useful their evidence will be. Witnesses called to give evidence are obliged to do so and may be fined if they fail to appear without just cause.
Witness statements are given orally with few exceptions (eg, a legal person or public entity can make a written statement when it is not necessary that a specific individual with knowledge of the facts testify).
Although cross-examination is not expressly regulated in the Spanish Civil Procedure Law, this type of interrogation is permitted under the general rules. After the party that has proposed the witness has conducted its examination, the opposing party may cross-examine the witness on any issue. The judge may also ask the witness additional questions.
In antitrust litigation, witness evidence is not particularly important. Circumstances such as the length of time that usually elapses between the facts at issue and the litigation starting, or, typically in the context of follow-on litigation, discussion about the reading and interpretation of the infringement decisions of the competition authorities tend to imply that witness evidence is regarded as having a secondary role.
Unlike in other jurisdictions, courts in Spain cannot appoint an expert witness on their own initiative. However, as per Article 76(4) of the LDC and Article 15-bis of the LEC, courts can request the corresponding competition authority to intervene to provide technical and theoretical knowledge in the proceedings, but limited to the criteria for quantifying damages. They cannot act as court-appointed experts to quantify damages themselves. In practice, competition authorities are notably reluctant to intervene and it is far from a common practice.
Thus, each of the parties mandates its own independent expert to submit the opinions. They may request the court to appoint an expert witness, but this is rarely used, and this is almost unprecedented in antitrust litigation practice.
The law does not provide for the possibility of agreeing on the way of appointing, or on the identity of, the court-appointed expert. Furthermore, the existing expert list available for court-appointment may lack the required technical expertise. Consequently, given the complexity of the subject matter and the uncertainty of the outcome of the court-appointed expert’s opinion, it is highly unusual for the parties to request such a court appointment.
Expert opinions are presented in the form of a written report. The parties may seek verbal clarifications during the trial. For these purposes, experts are examined according to the same rules as non-expert witnesses.
Spanish courts do not typically require experts to produce joint statements indicating the areas on which they agree and disagree in advance of trial. A court may agree to a “confrontation” between the experts during the clarification phase, where they are asked questions on the points on which there are discrepancies.
An interesting phenomenon is the increased use of cross-examination and expert conferencing, both of which had been alien to Spanish civil litigation and, for the time being, lack a positive legal grounding. Practice and the natural complexity and relevance of economic discussions are clearly driving this change.
Importance of, and Usual Approach to, Expert Reports
Economic reports prepared by experts are common and of crucial importance in antitrust litigation.
Plaintiffs have the onus of proving the existence of damage and its quantification. The claimants’ expert report ought, then, to address these two main issues. In follow-on litigation, it is relatively common to see claimants’ experts’ reports addressing the quantum and devoting either little or no effort to discussing matters of causation, let alone the existence of the damage. This seems to be highly correlated with the discussion regarding the binding effect of infringement decisions.
In contrast, defendants’ experts must propose a reasonable alternative that refutes the existence of damage (if it has not been established as an undisputed proven fact) or justifies a lower quantification of the damage. It is also common for defendants’ experts to critique the plaintiffs’ experts’ reports.
The precise limits and scope are still subject to much debate and discussion. It is now very frequent for lower courts to paraphrase some considerations made by the Supreme Court in judgment 651/2013. According to this ruling, a claimant’s expert needs to formulate a reasonable hypothesis with a technical basis supported by verifiable and non-erroneous data. There is a strong and intense debate as to the extent to which these findings translate into practice. In the said judgment, the Court ruled that, since the existence of damage was clear in that case, the defendant’s expert report should not exclusively criticise the claimant’s report, but rather suggest an alternative quantification. Even if the debate in the above-mentioned ruling was limited to the quantum, judicial debate remains as to whether this alternative approach should encompass the theory of harm and causation as well.
Article 72(2) of the LDC recognises the right to full compensation for damages suffered and specifically for the following concepts:
Damages are strictly compensatory and aim to place the injured party in the situation it would have been in had it not suffered the damage. Article 72(3) of the LDC expressly prohibits overcompensation by means of punitive damages.
Article 72 of the LDC is broad enough to allow injured parties in cartel cases to claim for harm suffered as a result of an infringement’s umbrella effect. Causation in those cases needs to be carefully assessed.
Assessment of the Damage
The assessment of damage has two main steps. Firstly, proving the existence of the damage. Secondly, if proved, quantifying the damage. Expert reports should address both of these steps.
In antitrust litigation, particularly in follow-on damages litigation, the first step is deeply intertwined with the discussions regarding the content and interpretation of the infringement decision, including whether the decision established and empirically assessed the effects of the infringing conduct on the market on the one hand, and causation and the specific harm suffered by claimants on the other hand.
The proper quantification of harm (ie, step two) only happens if the existence of damage has been proved. Current litigation shows that the main focus is set on step two. Among the many aspects currently being debated (eg, the standard and burden of proof, methodologies, and availability and access to data sets), judicial estimation of the award, its availability before the transposition of Directive 2014, and the relevant requirements lie at the centre of the debate. The focus of the debate nowadays, after certain rulings of the Supreme Court in the trucks litigation case, is whether the judge can estimate damages when it is convinced (via an assumption) of the existence of damage but the claimant (i) relies only on meta studies, which is clearly insufficient to determine the amount of the claim and (ii) has not made use of the tools at their disposal (such as request to access to sources of evidence) in order to better demonstrate the existence and the quantification of the damage.
Directive 2014/104 introduced the passing-on defence as hard law. In Spain, however, courts had already recognised it as a reflection of the compensatory nature of damages claims.
The passing-on defence allows the defendant to argue that the claimant passed on the overcharge caused by the infringement and, thus, the award should be reduced in part or in full. In practice, the evidentiary requirements make it excessively difficult to prove since it is insufficient to prove only that the claimant increased its prices. Lower courts’ judgments on this matter require defendants to prove that the damage has been passed on in its entirety, and to demonstrate how it was passed on and in what amount (Court of Appeal of Valencia, judgment 4/2022).
Causation is essential in this respect. Defendants must prove that the price charged by the plaintiff to its customers is higher than the price that would have been charged had the infringement not occurred. Thus, the cause of the increase has to be the infringement of competition law and not other market effects, such as an increase in the demand.
According to the Supreme Court’s case law, the defendant must also prove that the claimant’s sales were not reduced due to the price increase (Supreme Court, judgment 651/2013).
It must be noted that it is common for the courts to reject the passing-on defence when the defendant denies the very existence of any harm. Courts argue that the premise of the passing-on defence rests on the recognition of the existence of harm that could have been passed on by the claimant and, thus, it is incompatible with its denial (Court of Appeal of Zaragoza, judgment 471/2021).
Interest is expressly listed as a head of damage for compensatory damages and it is considered an essential element of the right to full compensation. The most crucial question, given that in antitrust infringements several years usually elapse between the occurrence of the damage and the claim being filed, is to determine the date from which the interest should accrue (the so-called dies a quo).
Although Article 72 of the LDC does not state the date on which interest must start to accrue, following the ECJ’s doctrine and the wording of Directive 2014/104, case law considers that interest accrues from the occurrence of the damage until the compensation is paid, without the need for judicial involvement (Court of Appeal of Girona, judgment 302/2022).
The applicable interest rate is the so-called “legal interest rate of money”, which is currently fixed at 3%.
Directive 2014/104 states that where several undertakings breach competition rules jointly (eg, a cartel), it is appropriate to hold co-infringers jointly and severally liable for the entire harm caused by the infringement.
After the transposition of Directive 2014/104, Article 73 of the LDC expressly provides, as a general rule, that the co-infringers are jointly and severally liable to the injured parties for the resulting damages, regardless of whether or not they had a direct or indirect relationship with the claimant.
The basis of this liability rests on the premise that the intrinsic cause of the damage in such cases is the collusive behaviour of the co-infringers, irrespective of which infringer had a direct or indirect commercial relationship with the injured party.
Before Directive 2014/104, joint and several liability was applied on the basis of in solidum liability, which refers to joint and several liability that arises from a judgment and not from the law. Its application was very common when it was not possible to determine the specific role of each party in the harmful event or apportion the harm caused between co-infringers.
The consequence of the change from in solidum liability to joint and several liability is that it is now irrelevant whether it is possible to identify the specific role of each co-infringer in a particular harmful event, since they will continue to be jointly and severally liable without prejudice to their right to seek reimbursement from one another pursuant to Article 73(5) of the LDC (Court of Appeal of Pontevedra, judgment 242/2022).
Exceptions and Limitations
Article 73 of the LDC sets out two exceptions to the joint and several liability rule.
The first provides that when the infringer is considered a small or medium-sized company according to Commission Recommendation 2003/361/EC, it is liable only to its own direct or indirect purchasers, provided that:
The LDC also states that beneficiaries of a leniency programme are only jointly and severally liable for damages directly or indirectly caused by other co-infringers when it is proved that the injured parties could not obtain full compensation from the other companies involved in the infringement.
Finally, there is no advantage or limitation for applicants or beneficiaries of a leniency programme with respect to their own direct or indirect purchasers.
Article 73(5) of the LDC provides that the defendant who is liable to compensate for the damage on the basis of joint and several liability is entitled to claim the corresponding proportional amount paid from the other co-infringers. The amount shall be determined on the basis of the relative liability for the damage caused.
The right of reimbursement shall be brought in separate and subsequent proceedings to the main proceedings, since Spanish law does not allow third-party compulsory summons to proceedings unless expressly provided by the law, which is not the case in this regard.
According to Article 1964(2) of the CC, the limitation period for this action is five years.
The right of reimbursement is limited in cases where a claim is made against a beneficiary of immunity under a leniency programme (claims are limited to the damage that the beneficiary caused directly or indirectly to its own purchasers or suppliers).
In all Spanish proceedings, parties have the option of requesting injunctive relief (Articles 720–747 of the LEC) to ensure the resulting judgment can be enforced.
The requirements for injunctive relief are the following:
Normally, injunctive relief will be requested together with the filing of the action. However, it may be requested prior to the filing of the lawsuit on urgency grounds, or even after the lawsuit is filed if there is a change of circumstances that makes it necessary.
Injunctive relief can be adopted without notifying the defendant (inaudita parte). In this case, the plaintiff will have to prove that the relief is needed urgently, or that notifying the defendant might risk the effectiveness of the precautionary measure. If the request is granted, the injunction will be adopted, but the defendant will have the opportunity to oppose it within 20 days. If the request is dismissed, the proceedings will be conducted according to the standard rules for notified injunctive measures.
In the standard procedure, the defendant is given prior notice and the parties are summoned to a hearing in which the defendant must be given the opportunity to argue that the requirements necessary to grant the requested injunction are not fulfilled.
Article 733(2) of the LEC provides that, with regard to precautionary measures granted without notifying the defendant, the court shall grant them within five days of the filing. If the standard procedure is followed, according to the law, it should not exceed 25 days.
However, these time limits are not usually respected by courts and are, therefore, not useful in indicating time spans adopted by each court in practice.
The duration of the procedure depends on several factors. The main factor is the workload of the court dealing with the request. In this regard, there are significant differences between judicial districts and even between courts within the same district. Therefore, it is advisable to manage expectations of response times once the court that will hear the request for precautionary measures has been determined.
Finally, if the case is dismissed on its merits, the applicant for precautionary measures must compensate the defendant for the damage caused by the injunction and forfeit the security provided.
The parties may submit their disputes to arbitration but cannot be forced to do so.
It is also possible for the parties to reach an out-of-court settlement, with or without the assistance of a mediator.
If an out-of-court settlement is reached, Article 77 of the LDC provides that the liability of the infringer who reaches the settlement can be limited. Any co-infringers who have not reached a settlement may not claim part of the remaining compensation from the co-infringer who has reached the settlement. Likewise, the injured party may not claim the part of the damage caused by the infringer with whom the out-of-court settlement was reached, from the other co-infringers.
Litigation funding is not regulated in Spain.
In Spain, fundamentally, litigation funding can be described in two ways (Supreme Court, judgment 53/2020).
Assignment of the Right to Claim
This option basically consists of acquiring the claim rather than just investing in it. Some courts question the legal standing of the purchaser. Commercial Court 11 of Barcelona recently ruled in favour of the assignee in a case involving the assignment of a right to claim compensation arising from incidents on commercial flights (judgment 120/2022).
The Supreme Court stated that the absence of regulations means that this matter is left to the will of the parties, who can agree on the degree of control that the investor will have over the trial.
In Spanish proceedings, legal costs include several elements, including the fees of the lawyers and experts involved in the proceedings. These costs are limited to one third of the amount claimed in the proceedings, except in the cases of bad faith.
Article 394 of the LEC provides that the costs must be paid by the party whose claims are fully rejected, unless there are “serious doubts of fact or law”.
In antitrust litigation, although costs awards are common, there are judgments that do not award costs due to the existence of legal doubts resulting from the complexity and novelty of the matter, especially in favour of the claimant when its claim is rejected (Court of Appeal of Madrid, judgment 53/2022).
Furthermore, technically, only a fully successful claim should give rise to an award of costs. This issue led Commercial Court 3 of Valencia to request the ECJ for a preliminary ruling on whether this rule complies with the principle of full compensation.
Finally, it is not common for courts to order measures to secure the recovery of costs. In any case, such a request could be made to the court through a request for injunctive relief.
All first-instance judgments may be appealed, except those issued in oral proceedings determined by reason of the amount (instead of ratione materiae), when that amount is less than EUR3,000.
Appeals are heard by the Court of Appeal of the province corresponding to the court that issued the appealed judgment. The appeal may be based on factual or legal grounds.
A judgment issued by the Court of Appeal may be appealed before the Supreme Court on the basis of the existence of a relevant procedural error (recurso extraordinario por infracción procesal) or when the Court of Appeal has infringed the applicable rules (recurso de casación).
In particular, a recurso de casación will only be admitted and examined in the following cases.
The Supreme Court shall not modify the Court of Appeal’s findings of fact and must instead analyse whether the law has been applied correctly, so the appeal will be only on points of law.