Private antitrust litigation in Spain: overview
A Q&A guide to private antitrust litigation in Spain.
The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.
This Q&A is part of the Private Antitrust Litigation Global Guide.
The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.
Legal basis for bringing private antitrust litigation actions
It is possible to bring stand-alone actions and claim for damages without a prior infringement decision by any authority or court judgment. Damages can be sought for stand-alone actions relating to bilateral, multi-lateral and/or unilateral antitrust infringements.
For the purposes of this article, a "competition authority" includes the European Commission, the Spanish Competition Authority (Comisión Nacional de la Competencia) or any competition authority of the Autonomous Communities (that is, the governing authorities in the various regions of Spain).
Legislative. The legal basis for bringing a stand-alone action is provided for under civil law, for example:
Article 1902 of the Spanish Civil Code (approved by Royal Decree dated 24 July 1889). This sets out the general rules for liability under tort. Article 1902 also applies to liability for damages following the infringement of competition rules (namely, the Competition Act 15/2007 of 3 July and the Treaty for the Functioning of the European Union (TFEU) and other applicable EU rules on competition), as there are no specific rules in relation to damage claims based on antitrust infringements (until Directive 2014/104/EU on actions for damages under national law for infringements of competition law provisions of the member states (Antitrust Damages Directive) is implemented in Spain).
Article 32.5 of the Unfair Competition Act (Law 3/1991, 10 January). This is another legal basis for claiming damages for antitrust infringements. Article 32.5 provides that actions for damages derived from acts of unfair competition can be claimed (according to Article 15.2 of the Unfair Competition Act, the infringement of antitrust rules amounts to an act of unfair competition).
Non-legislative. It is not possible to bring a non-legislative stand-alone action (for example, an action established by the jurisprudence of the relevant courts/tribunals rather than the specific rules under law) in Spain.
Adversarial or inquisitorial. Stand-alone actions are adversarial.
The claimant and the defendant can submit their arguments at all stages of proceedings. The claimant must submit its claim, and the court will notify it to the defendant, who should submit its writ of defence within 20 working days from the date of notification. Within ten working days from the date of notification of the claim, the defendant can submit its objections to the court's jurisdiction (declinatoria). Filing a challenge to the claim will stop the clock in relation to the defendant's 20-day deadline to submit its writ of defence. Once the defendant has submitted its writ of defence, or once the 20-day period has elapsed, the parties will be called to the Preliminary Hearing. The Preliminary Hearing has four main objectives:
To reach a settlement between the parties.
To assess those procedural issues that could obstruct the proceedings and its termination by means of a judgment.
To determine the controversial object and issues, both regarding facts and law, for the parties.
To propose and admit the pieces of evidence.
After the Preliminary Hearing, the trial will take place. The pieces of evidence proposed by the parties and admitted by the court will be executed and the parties will be allowed to submit their conclusions in view of this evidence. If the evidence proposed by the parties and admitted by the court is documental evidence which has not been challenged or expert reports for which ratification from the author is not required (either by the parties or by the court) the court will directly issue its judgment within the 20 days following the Preliminary Hearing, without a formal trial.
It is possible to bring follow-on actions and claim damages by relying on a prior decision of a competition authority or judgment of a court declaring an infringement. Damages can be sought for follow-on actions relating to bilateral, multi-lateral and/or unilateral antitrust infringements. See also Question 23, Judgments.
Legislative. The legal basis for follow-on actions is the same as for stand-alone actions (see above, Stand-alone actions: Legislative).
Non-legislative. It is not possible to bring a non-legislative follow-on action (for example, an action established by the jurisprudence of the relevant courts/tribunals rather than the specific rules under law) in Spain.
Adversarial or inquisitorial. Follow-on actions are adversarial.
Parties to an action
To commence a stand-alone action, it must first be demonstrated that an infringement of competition law has occurred. Moreover, the claimant will need to demonstrate both:
That he suffered a damage (and quantify it).
There is a causal link between the competition infringement and the damage.
A legal or natural person who has suffered the claimed damage has standing to bring a stand-alone action.
Any person who has suffered damage (whether directly or indirectly) that is derived from an infringement, and who can prove the existence of a causal link between the infringement and the damage, can bring stand-alone action for damages. This includes third parties and both direct and indirect purchasers.
A damages action brought by a party to an infringement agreement against other infringing parties to the agreement would be assessed under the same general tort liability assessment. It should therefore be determined whether the consent of the alleged victim to the infringement would neutralise the fault of the defendant so as to eliminate the causal link. There is no specific case law on competition cases in this regard. However, we consider that in the case of a unbalanced negotiating power between the parties to an illegal agreement, it may be understood that the blame of the "forced" party would not be enough to neutralise the blame of the "forcing" party (in this regard, the statements of the European Court of Justice in C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan against Courage Ltd and others would apply to damage actions derived from infringements of both Spanish and EU law).
The same must be proved as for stand-alone actions, as final administrative judgments do not bind civil (commercial) courts (see above, Stand-alone actions). However, a decision from a competition authority will serve as an indication for the Commercial Court of the existence of the infringement, and the latter will very much rely on it in practice.
A legal or natural person who has suffered the claimed damage has standing to bring a follow-on action.
Any person who has suffered damage (whether directly or indirectly) that is derived from an infringement, and who can prove the existence of a causal link between the infringement and the damage, can bring a follow-alone action for damages. This includes third parties and both direct and indirect purchasers.
The rules relating to parties to an infringing agreement bringing actions against other infringing parties to the agreement are the same as for stand-alone actions (see above, Stand-alone actions).
Multiple claimants. Spanish law provides for collective actions in cases where the infringement has caused damage to a collective group of consumers or users. Moreover, a single claimant can represent the interests of multiple claimants in two different ways:
First, multiple claimants can assign their damage claims (credit claim) to a third party, who can exercise those claims jointly (Article 1526, Civil Code).
Secondly, right holders can grant the representation of their interests to a third party (Article 1709, Civil Code).
Certification. Spanish law sets out two specific cases in which collective actions can be used (Article 11, Code of Civil Procedure):
If the consumers or users affected are perfectly determined or are easily determinable, the action can be brought by any of the following:
an association of consumers and users;
an entity legally constituted for the purpose of defending or protecting consumers and users;
the group of affected people themselves (the group must include the majority of the affected people).
If the consumers or users affected are not determined or are difficult to determine, the action can only be brought exclusively by those associations of consumers and users which are considered by the relevant applicable law, as representative of those consumers/users.
Opt-in or opt-out. In collective actions exercised in Spain, claimants must opt into any collective action. In order for all the interested consumers and users to be able to exercise their respective claim, the consumers of the product/users of the service which gave rise to the civil procedure will be called by the court.
Under the Code of Civil Procedure, the mechanism for calling such individuals in a collective action distinguishes between:
Collective actions where those affected by the infringement are determined (or easily determinable). Before filing the claim, the claimant may request the court, as a preliminary proceeding, to take the necessary actions to find out the identity of the consumers or users affected. Then (also before filing the claim) the claimant will communicate all the interested parties its intention to file the claim, so that they can intervene. After filing the claim, the court will still call the consumers or users affected: after this call, the consumers or users will be able to intervene in the process at any time, but only in relation to the procedural steps for which the deadline has not yet elapsed.
Collective actions where those affected by the infringement are not determined (or are difficult to determine). After filing the claim, the court will call those consumers or users affected by the infringement. The call by the court will stop the clock of the proceedings for a period of no more than two months. After this period, the proceedings will resume, including all consumers and users that have decided to join. After that, no other users or consumers can join the proceedings, without prejudice to their right to enforce the future judgment in their favour.
The rules relating to multiple claimants, opting in and certification are the same as for stand-alone actions (see above, Stand-alone actions).
Claimants can bring stand-alone actions against corporate entities domiciled within Spain. However, for damage claims based on the Unfair Competition Act special considerations should be made (see below). No special consideration must be given to jurisdictional issues.
Damage claims based on general tort liability against corporate entities can be brought in both the jurisdiction where the (Article 51, Code of Civil Procedure):
Corporate entity is domiciled.
Situation or the legal relationship to which the claim is related to was born, or should have had its effects, provided the corporate entity has a branch opened to the public or an authorised representative in such jurisdiction.
Damage claims based on the provisions of the Unfair Competition Act can be brought in either (Article 52.1.12º, Code of Civil Procedure):
The jurisdiction where the defendant has its branch or, in its absence, in its domicile or place of residency.
Where the defendant is not domiciled or resident in Spain, in the jurisdiction where the unfair competition act took place or where it has produced its effects, at the claimant's discretion.
Moreover, specific rules apply to cases where there are various defendants (Article 53, Code of Civil Procedure), for example:
If there are various claims exercised jointly against one or several defendants, these can be brought:
in the jurisdiction where the action on which the rest are based would be brought;
or failing the above, in the jurisdiction where most of the actions should be brought;
or failing the above, in the jurisdiction where the most important action from a quantitative point of view should be brought.
If there is one single claim exercised against various defendants, the claim can be brought before any of the jurisdictions where the claim can be brought under the general rules on territorial jurisdiction (which the claimant can choose from).
The rules relating to assuming jurisdiction are the same as for stand-alone actions (see above, Stand-alone actions).
Stand-alone actions can be brought against individuals, provided the claimant can demonstrate that the individual committed the infringement which caused the damaged claimed. However, in practice, private stand-alone actions are not generally brought against individuals and there is no known case law.
Follow-on actions can be brought against individuals, provided the claimant can demonstrate that the individual committed the infringement which caused the damaged claimed.
Under Spanish law, the competition authority is entitled to declare managers of the infringing companies personally responsible and can sanction them accordingly.
In practice, follow-on actions brought on the basis of Spanish competition law are more easily brought against individuals if such persons have been declared personally responsible (and fined) for the infringement by the competition authority. However, in practice, private follow-on actions are not common and there is no known case law.
Limitation periods and forum
No specific limitation periods exist for stand-alone actions. Therefore, the general rules under tort are applicable. The Spanish Civil Code sets out the general limitation period concerning tort liability, which is one year on from the date the damaged party was aware of the damage (Article 1968.2). However, if the infringement took place in Catalonia the limitation period is for three years (Article 121-21, Catalan Civil Code).
However, if the claim is based on the provisions of the Unfair Competition Act, the limitation period for the action is one year from the moment the action could be exercised and the victim had knowledge of the author's identity, or three years on from the end of the conduct (Article 35, Unfair Competition Act).
Under the Civil Code, the general limitation period commences from the date the damaged party had knowledge of the damage (Article 1968.2). However, the moment the damaged party "had knowledge of the damage" should be determined on a case-by-case basis. This has given rise to abundant case law in relation to different types of damage. Under the general rules of tort liability, damaged parties have knowledge of the damage, if and when they know the existence, nature and dimension of the damage, as well as, according to the doctrine, the author of the damage.
According to the recent case law on damage claims arising out of antitrust infringements (Centrica case, ruled by the Supreme Court), the limitation period must not commence before the conditions set out in Article 10.2 of the Antitrust Damages Directive (which has not still been transposed into Spanish legal system) are met. Under Article 10.2, the limitation period does not start running until the:
Infringement of competition law has ceased.
Claimant knows (or can reasonably be expected to know) the following:
the identity of the infringer;
the infringer's behaviour and the fact that it constitutes an infringement of competition law; and
the fact that the infringement of competition law caused harm to the claimant.
In a recent case, the Commercial Court of Madrid (No 12) considered a victim to only have knowledge of the scope and origin of the conduct when the decision was adopted by the Spanish Competition Commission (Musaat Case). However, despite this ruling, at present it is not totally clear whether this limitation period should start to run from when the administrative decision is adopted, published or when there is a final judgment of the case (all interpretations could be validly held).
The Unfair Competition Act provides for a period of one year on from the moment the action could be exercised and the victim knew the author's identity and, in any case, three years from when the infringing act had ceased (Article 35).
There are no circumstances in which the above limitation periods can be extended.
The rules relating to limitation periods are the same as for stand-alone actions (see above, Stand-alone actions).
Damage claims can be commenced in the Commercial Courts, either if the claim is based on the:
General rules of tort liability (Article 86 ter 2.f, Organic Courts Law).
Rules of the Unfair Competition Act (Article 86 ter 2.a, Organic Courts Law).
See above, Stand-alone actions.
There are no particular advantages or disadvantages of bringing actions to different courts or tribunals. The only difference may be the subjective perception that one may have of the specific judges or courts as regards different factors, such as their speed.
There are no particular advantages or disadvantages of bringing actions to different courts or tribunals (see above, Stand-alone actions).
In view of the case law in Spain, the preferred way to claim damages for antitrust infringements appears to be through the use of follow-on actions rather than stand-alone actions. There are two perceived reasons for this preference:
Firstly, there is much more evidence of the infringement in a follow-on action than in a stand-alone action. In follow-on actions, the claimant has all the evidence gathered by the competition authority at its disposal. Moreover, the civil courts have very limited investigation powers.
The second reason is the lack of experience of the Spanish courts in private enforcement of competition law, as opposed to the experience of the competition authority.
Standard of proof and liability
Standard of proof
To establish the necessary standard of proof, the claimant must prove both the:
Existence and quantity of the damages suffered.
Causal link between the infringement and the damage.
Burden of proof
In cases where the infringement has not already been proved (for example, stand-alone actions and follow-on actions based on a not-final decision of the competition authority), the claimant must prove the infringement.
Moreover, the claimant must prove the existence and quantity of the damages suffered. For these purposes, expert reports are used both by claimants and defendants. According to case law, it is sufficient for the expert reports submitted by the claimants to formulate a reasonable and technically well-founded hypothesis of the damage on the basis of verifiable and truthful information. According to the same case law, the defendant can also submit an expert report which can challenge the accuracy and validity of the quantification of the damages made in the expert report submitted by the claimant and must justify an alternative and better founded quantification of the damages.
Finally, the claimant must prove the causal link between the infringement and the damages suffered.
No rebuttable presumptions exist in private antitrust actions in Spain.
Companies that jointly carried out the infringing conduct which produced the claimed damages are jointly liable for the damages that arose as a consequence of the conduct. In particular, this joint liability applies in cartel cases.
In the case of liability on a joint and several basis, each infringing company is liable for all damages as a consequence of the infringement (for example, liability for damages suffered by its clients but also for damages suffered by the other cartel members' clients). The claimant will decide whether it wishes to claim all damages from one or another infringing company and the court will decide on the basis of that petition (the court cannot decide to apportion liability between the parties to an infringement in a different way as requested by the claimant).
In relation to claimants seeking damages against cartel members for purchases they made from non-cartel members, these can be claimed if the claimant can prove the existence of such damage and the causal link between the infringement and the damage suffered. These claims would be made on the basis of the same legal provisions as other damage claims.
If damages are paid to the claimant on a joint and several basis and one of the parties pays the damages to the claimant in full, this defendant can claim for the corresponding proportionate amount paid (as well as any interest due for the advancement) from the other infringing companies (whether or not they were parties to the proceedings) if these damages were claimed and subsequently granted by the court (Article 1145.2, Civil Code). Contribution claims should be brought after the main claim is resolved, as the potential claimant cannot foresee the quantity (proportionate amount) to be claimed from the other infringing parties until the main claim is resolved.
However, in the limited number of cases that have been resolved, when damage actions have been claimed the claimants have requested specific damage be provided to them directly from each defendant, which made contribution claims unnecessary.
The limitation period for contribution claims is five years from when the fulfilment of the obligation may be requested by the claimant (Article 1964, Civil Code).
Costs and timing
Under Article 394 of the Civil Procedure Rules (CPR), costs are imposed on the party that had its pleas rejected, unless the court reasons that the case would pose serious legal doubts. For the purposes of ordering a party to pay costs, in order to verify whether the case is legally doubtful, the jurisprudence of similar cases must be taken into account.
If the upholding or dismissal of the pleas is partial, each party must pay its own costs and the common costs must be shared equally, unless there are reasons to impose the costs on one of the parties (for example, where one of the parties has recklessly chosen to pursue litigation). Apportionment of costs between the parties is acceptable but rare.
If the defendant accepts the claim before responding, there will be no imposition of costs unless the court duly reasons the matter and observes bad faith in the defendant (Article 395, CPR). Bad faith will be construed if, before the claim is filed, any of the following is applicable:
An irrefutable and justifiable requirement for payment is served on the defendant.
Mediation proceedings were previously initiated.
A claim for reconciliation was brought against him.
If proceedings are terminated due to abandonment by the claimant and the defendant does not consent to this, the claimant will be ordered to pay all the costs (Article 396, CPR). However, if the abandonment which terminated the proceedings is consented by the defendant or the defendants, none of the litigants will be ordered to pay costs.
The rules for costs are the same as for stand-alone actions (see above, Stand-alone actions).
See Question 11.
Parties can engage legal representation under both a conditional fee arrangement and a damages-based fee arrangement. In this regard, parties can engage legal representation under any fee arrangement they agree with their legal representatives. Parties can therefore agree to a:
Fix fee and variable fee, with the variable fee depending on the result of the claim, such as:
a percentage of the damages obtained, in the case of a claimant;
a percentage of the damages claimed which were not finally granted by the court, in the case of a defendant.
Variable fee only. This is where no fixed fee is agreed and the claimant or defendant only pays a fee based on the result of the proceedings, such as a:
portion of the damages granted by the court, in the case of a claimant;
part of the damages not granted by the court, in the case of a defendant.
The rules are the same as for stand-alone actions (see above, Stand-alone actions).
Commercial courts have jurisdiction over antitrust actions. The time from the filing of the claim to the first instance judgment depends on the workload of the court.
In the major cities such as Madrid or Barcelona, where there are several commercial courts, it can take between a year and a year and a half until the court issues its judgment. In small cities, where there are just one or two commercial courts, it can take up to two years from the filing of the claim for the court to issue its judgment.
Pre-trial applications and hearings
The Civil Procedure Rules (CPR) entitles claimants to apply for interim measures in both stand-alone and follow-on actions prior to a full trial and, depending on the circumstances, prior to the filing of the claim on the merits.
However, injunctions can only be granted if the applicant can justify that the failure to grant the injunction before or during the course of the proceedings would lead to situations that would prevent or hinder the effectiveness of the protection that can be granted if an affirmative judgment is eventually passed (Article 728, CPR).
Unless expressly decided otherwise, the applicant for the injunction must provide security that is sufficient to compensate, in a speedy and effective manner, the damages that the adoption of the injunction may cause to the defendant.
No injunction will be granted if the aim of the injunction is to alter the de facto situation that the applicant was in during a prolonged period, unless the latter duly justifies the reasons for which the said measures had not been requested until then.
In relation to trends, the Spanish courts have tended to be rather restrictive in granting interim relief.
The rules relating to interim measures are the same as for stand-alone actions (see above, Stand-alone actions).
If there is an ongoing investigation into the same alleged infringement by the European Commission, Spanish Competition Authority or any competition authority of the Autonomous Communities, the court may decide to stay the proceedings if it considers that it is necessary to know the outcome of the administrative proceedings in order to resolve the claim (Article 434.3, Civil Code of Procedure). In these cases, the court will be bound by the decision adopted by the respective competition authority (Article 42.3, Civil Code of Procedure).
The stay of proceedings would take place at the end of the proceedings within the deadline set forth for the court in order to adopt the judgment.
The defendant would not be able to successfully seek a stay of proceedings on its own on the basis of the fact that a decision or judgment which is relevant to the action is under appeal. However, the parties to an action can agree to request a stay of proceedings for this reason. If it is the case, the court would be bound by such decision or judgment (Article 42.3, Civil Code of Procedure). The only possibility for the defendant to seek a stay of proceedings is in the case of an on-going investigation of the same alleged infringement by the Commission and until the decision is issued by the relevant competition authority.
In relation to recent trends, defendants usually argue that the Commercial Court should stay its proceedings until the appeal against the competition authority's decision has ended and the decision becomes final. However, as explained, this is not provided for specifically in the law and would require the agreement of both parties to the proceedings. Therefore, in this scenario the conditions required by law would not be fulfilled and the court will usually reject the defendants' unilateral request.
There are no other circumstances in which a defendant can successfully seek to stay an action brought against it.
It is not possible for a party to seek to have a specific issue tried as a preliminary issue before a full trial.
However, procedural issues that could obstruct the proceedings and the controversial objects and issues (regarding both facts and law) will be assessed at the Preliminary Hearing (see Question 1, Stand-alone actions: Adversarial or inquisitorial).
Evidence and legal privilege
Competition authority decisions
An infringement decision or other finding of fact adopted by a competition authority is not binding on the court when deciding a damages claim.
A follow-on action can be filed on the basis of a court judgment or competition authority decision that is still subject to appeal. However, the following should be considered:
Damage claims must be submitted to the Commercial Courts, which belong to the civil jurisdictional order.
Judgments on appeal of decisions from a competition authority are issued by administrative (public law) courts.
Therefore, a judgment confirming a decision by a competition authority is issued by the competent administrative court, while the damage claim will be brought before a civil (commercial) court. With this in mind, it is important to understand that the conclusive (binding) effects are limited, for example:
An administrative court judgment that confirms the decision of a competition authority, but which is still subject to appeal, will not bind the Commercial Courts.
An administrative court judgment that confirms (and makes final, since no further appeal exists) the decision of the competition authority, will have limited conclusive effect on the Commercial Courts, as the legal qualification is not binding (the Commercial Court could therefore still decide that there was no competition law infringement). This is because a judgment from the administrative court does not have a conclusive (binding) effect on the civil courts.
However, a final judgment from an administrative court does have a conclusive effect on the Commercial Courts in relation to the appraisal of the facts: the facts as decided by the administrative courts will bind the Commercial Courts. However, this is not completely absolute. The Commercial Courts may still have a different assessment of the facts, provided there is no contradiction and there is sufficient explanation as to why such contradiction does not exist.
The decisions issued by the European Commission also bind the civil courts, which do not adopt decisions that are incompatible with the Commission's decision.
It is possible to validly submit a decision or judgment of a body of a third country in the proceedings where the damage claim is decided. However, the value of these decisions or judgments would be the same as that of any other private documentary proof submitted by either party, depending on its own content, details and credibility.
There is no discovery or disclosure in Spanish procedural law that is similar to what is known in other jurisdictions. The ability to request documents or evidence from third parties is very limited.
During trial each party can request from the other parties the exhibition of documents it does not have in its possession and which refer to the object of the proceedings (Article 328, Civil Procedure Rules (CPR)).
The court can also request from third parties the exhibition of documents which it considers relevant for the purposes of the proceedings (Article 330, CPR). The court can use this faculty to request the production of the investigation file from the competition authority in the case of follow-on claims.
A party can generally oppose the production of any document not related to the case by objecting to the petition to produce such document.
Although there is no experience in the Commercial Courts, this is how administrative courts (in judicial review of the competition authority decisions) deal with the production of the investigation file by the competition authority: the party concerned can request confidential documents in the file to not be produced. However, the decision on confidentiality taken by the competition authority does not bind the court: the court will make its own adjudication on confidentiality.
Leniency applications are accessible (except for any confidential information) in the same manner as they are during the investigation proceedings. It is possible to read such applications at the court's office and take notes, but copies cannot be made.
Alternative dispute resolution
The parties can reach an agreement regarding the object of the action at any time during proceedings, regardless of whether such proceedings concern the damages action exercised or the appeal of the sentence which resolved the damage action. They can also reach an agreement on the object of the action exercised during the period of the execution of the judgment. This agreement can be ratified by the judge.
Parties are not required to engage in alternative dispute resolution (ADR) prior to the trial. One of the objectives of the Preliminary Hearing is for the parties to reach a settlement agreement before trial (see Question 1, Stand-alone actions: Adversarial or inquisitorial). However, the parties are free to resolve the action through ADR and are not required to engage in such dispute resolution before trial, or at any time during proceedings.
There is no obligation to engage in alternative dispute resolution in good faith and there are there no implications for refusing to engage in alternative dispute resolution.
There are also no specific tactical advantages or disadvantages associated with engaging in ADR.
Settlement or discontinuance of an action
Advantages. There are no tactical advantages associated with making an offer to settle beyond those generally associated with settlement agreements, such as:
Certainty: avoiding the uncertainty of judicial proceedings.
Saving time: proceedings can take several years to be resolved.
Avoiding the costs and troubles associated with judicial proceedings.
Limiting reputational damage to the company.
Avoiding the potential for an award of legal costs.
Moreover, settlement agreements can help to minimise the potential amount of damages that may be due at the conclusion of proceedings.
Disadvantages. Defendants can only offer to settle for the damages to which they are directly liable. Therefore, in cartel cases, all participants are jointly liable, and the defendant who reaches a settlement agreement may be still exposed to later claims for damages as a consequence of the joint liability.
The advantages and disadvantages are the same as for stand-alone actions (see above, Stand-alone actions).
Proceedings at trial
The Civil Procedure Rules do not provide for the possibility of granting orders for the restriction of confidential information in private antitrust proceedings. Such provisions only apply in relation to intellectual property. There are also no specific rules concerning how confidential information should be protected during the course of proceedings.
Evidence from criminal proceedings is admissible in private antitrust actions.
Witness evidence is admissible. Under Article 292 of the Civil Procedure Rules (CPR), witnesses summoned are under a duty to appear at the trial or hearing. Failure to carry out this duty is sanctioned by the court with a fine. The court will then request the fined witness to appear when he/she is again summoned, through a procedural court order with a warning that a criminal action might be taken against him/her for contempt of court if he/she does not appear before the court.
Witnesses can be cross-examined at trial. Article 372 of the CPR establishes that once the questions formulated by the attorney of the party which proposed the witness are answered, the attorneys of any of the other parties can cross-examine the witness.
Expert evidence is admissible (Article 299.4, CPR). Experts can be cross-examined.
Defendants can use a passing-on defence during the course of an action, alleging that the claimant has not suffered any damage inasmuch as the claimant has passed on downstream the damage.
To establish such a claim, the defendant must prove that the claimant has not suffered the damage claimed because it managed to pass on such damage to non-claimant third parties. In particular, the defendant must prove that both the claimant has:
Increased its selling prices.
Managed to pass on the damage suffered through that price increase.
Therefore, if the claimant has increased its prices but has suffered a decrease in its sales, the passing-on defence may not be totally acknowledged by the court.
The discussion concerning the passing-on defence was clearly set out in the judgment of the Supreme Court concerning the damages derived from the sugar cartel (Judgment of the Supreme Court, First Chamber, Number 651/2013 of 7 November 2013, Appeal number 2472/2011). In view of the criteria explained above, the court considered that the passing-on defence was not sufficiently proven. However, the success of the passing-on defence will depend on the circumstances of the case.
Other defences in private antitrust actions generally try to establish that:
There was no infringement whatsoever.
No damage was caused by the infringement.
No causal link exists between the infringement and the damage.
In relation to parental liability, the parent company subject to an action could argue that it did not control the infringing undertaking when the infringement took place, as it was controlled by another undertaking at the time.
The damages that can be the subject matter of a damage claim derived from an antitrust infringement are:
Loss of profit.
When considering whether to make an award of damages, the courts will consider the proofs submitted by the claimant and the defendant and the quantification of damages made by the parties. The courts do not take into account any other circumstances in private actions such as public financial penalties imposed previously or participation in voluntary redress schemes.
Compensatory damages are only available under Spanish national law. Therefore, the claimant must prove that he suffered the damages claimed as well as its quantification. For these purposes, economic reports issued by experts are used, where an assessment of the counterfactual scenario is made to quantify the damages. Profits gained by the defendant(s) as a result of the competition infringement are considered (among other circumstances) by the Spanish Competition Authority to determine the amount of the fine, but are not considered when determining damages suffered as a consequence of the infringement.
Exemplary damages (that is, damages exceeding the amount of the claimant's loss so as to reflect the disapproval of the awarding court or tribunal in respect of the defendant's conduct) are not available in Spain.
In some cases, the claimant may have suffered damage during a long period of time. In these cases, the amount of the damages should be updated as of the date of the granting of the damages claimed according to a discount rate, to reflect the current value of the damage claimed. This discount rate can be the inflation rate or the legal interest rate of money. Moreover, as from the date of condemnatory judgment and until payment is fulfilled, delay interest (higher than the legal interest) should be applied.
The bulk of damages claims correspond to non-realised profits. These are quantified through a comparison between:
An estimate of the prices in a hypothetical counterfactual "but-for" scenario.
The actual situation (prices and loss of business) suffered by the claimant during the cartel duration.
The estimate of the prices in a hypothetical counterfactual scenario may be done on the basis of different theories (for example, it is possible to use as a reference the pre-cartel prices or the prices in different but comparable countries).
For the purposes of quantifying the damages claimed, expert reports are used both by the claimants and defendants in most cases. Courts do not prefer witness evidence over the use of economic experts.
In relation to expert reports, the Supreme Court has stated that it is sufficient to consider that the damages are well quantified if the expert report submitted by the claimant formulates a reasonable hypothesis, which is technically founded on verifiable and non-erroneous information. In contrast, the expert report submitted by the defendant must both:
Question the accurateness and precision of quantification made by the expert report submitted by the claimant.
Provide and justify an alternative better founded quantification.
A judgment from the Commerce Court can be appealed before the Provincial Audience. An appeal submitted before the Provincial Audience can be made on the basis of either/both:
The merits of the case.
However, the review of the claim made by the Provincial Audience is limited to the same facts and legal considerations as in the proceedings before the Commercial Court. Therefore, the possibility of including any additional fact or provide any additional evidence is very limited.
A judgment issued by the Provincial Audience can be further appealed before the Supreme Court. However, these appeals can only be made in specific circumstances such as when the:
Provincial Audience has incurred a procedural infringement (recurso extraordinario por infracción procesal).
Judgment of the Provincial Audience has infringed the applicable rules (recurso de casación). This can only be made if one of the following applies:
the judgment was issued for the Civil Judicial Protection of Fundamental Rights (except for the constitutional right to the effective legal protection and defence);
the quantity of the action is above EUR600,000;
the quantity is below EUR600,000 or the proceedings were handled in consideration of the subject but the appeal has cassational interest (see below).
A case is considered to have cassational interest in any of the following circumstances:
When the appealed judgment opposes the case law of the Supreme Court.
When the appealed judgment resolves issues over which there is contradictory case law issued by the Provincial Audiences.
When the appealed judgment applies laws or provisions that have been in place for five years or less, and there is no case law issued by the Supreme Court in relation to previous laws or provisions with equal or similar content.
In addition, appeals submitted before the Supreme Court can only be made on the basis of specific grounds set out by law, as follows:
Appeals that concern a procedural infringement (recurso extraordinario por infracción procesal). These can only be submitted on the following grounds:
infringement of rules concerning jurisdiction and objective or functional competence;
infringement of procedural rules of the judgment;
infringement of the legal provisions concerning the acts and guarantees of proceedings, though only if the infringement determines the nullity or could have caused defenceless;
infringement, in the civil procedure, of the constitutional right to the effective legal protection and defence;
Appeals that concern the infringement of the applicable rules (recurso de casación). These can only be submitted on the grounds of an infringement of a specific legal provision, case law or general principle of law.
Spanish Competition Authority
Description. Official website of the Spanish competition authority, where all competition legislation can be found, as well as all the decisions adopted by the Spanish Competition Authority and the court judgments deciding the appeals issued against the Authority's decisions. Most of the legislation included here is in Spanish. However, English translations are available for certain pieces of legislation.
Spanish Official Gazette
Description. Official website of the Spanish Official Gazette, where all laws and regulations in force are published. All legislation contained here is in Spanish.
Ministry of Justice
Description. This website is maintained by the Ministry of Justice and includes certain legislations translated into English and French. However, the translations included are not official and it is advisable to verify whether the specific translation consulted is up-to-date.
Iñigo Igartua Arregui, Partner
GÓMEZ – ACEBO & POMBO ABOGADOS, S.L.P.
Professional qualifications. Spain, lawyer, 1990
Areas of practice. Competition; distribution; e-commerce; intellectual property; administrative law.
Andrea Díez de Uré Loinaz, Associate
GÓMEZ – ACEBO & POMBO Abogados, S.L.P.
Professional qualifications. Spain, lawyer, 2012
Areas of practice. Competition; distribution; e-commerce; pharma.
Javier Béjar García, Partner
GÓMEZ – ACEBO & POMBO Abogados, S.L.P.
Professional qualifications. Spain, lawyer, 2000
Areas of practice. Dispute resolution; white collar crime; corporate compliance.
José Luís Amérigo Sánchez, Associate
GÓMEZ – ACEBO & POMBO Abogados, S.L.P.
Professional qualifications. Spain, lawyer, 2011
Areas of practice. Dispute resolution; intellectual property; data protection.