On 26th May 2017, the Spanish government transposed Directive 2014/104 governing actions for damages for infringements of the National and European Competition Law (“the EU Damages Directive”) into national law by means of Royal Decree 9/2017 (“the Royal Decree”).
In order to align Spanish Law to the EU Damages Directive, which enables victims of competition infringements across the EU to claim full compensation for the harm suffered, the Royal Decree has amended two Spanish norms: (i) the Spanish Competition Act (Law 15/2007) and (ii) the Civil Procedure Act (Law 1/2000).
a) The Spanish Competition Act
With regard to the Spanish Competition Act, a sixth Title has been added concerning compensation for competition infringements. The main points of this Title are summarized below:
— For the purposes of bringing actions for damages, competition infringements are defined as practices contrary to Articles 101 and 102 of the TFEU and Articles 1 and 2 of the Spanish Competition Act. Unfair competition practices are excluded from the definition of competition infringement and claims for damages for unfair competition practices are regulated under specific legislation (Law 3/1991 on Unfair Competition).
— The right to full compensation of the victims is recognized. Therefore, compensation for competition damages shall result in restoring the victim’s situation as it stood prior to the infringement. This means that compensation shall cover actual losses and lost profits, plus interests. Full compensation shall not, in any event, result in overcompensation of the prejudice by means of punitive, multiple or any other type of compensation.
— As for the legal standing to claim for damages, the new rules allow any person, whether direct or indirect purchaser, that has been a victim of a competition infringement to bring a claim for competition damages before the national courts. Where the claimant is a direct purchaser, the author of the competition infringement may counter argue that such claimant has passed on to the consumer the whole or part of the overcharge that resulted from the anti-competitive practice. In such cases, the burden of proof is on the infringer.
— Although the victim must prove the damages suffered, it is presumed that cartels result in damages, unless proven otherwise. In case the quantification of the damage is impossible, the courts are entitled to estimate its value.
— In case of plurality of infringers, they will all be jointly and severally liable for the damages claimed. There are two exceptions to this rule: (i) if the infringers are SMEs and (ii) where the infringers have benefited from the leniency programme. In these cases, liability will only extend to their very own purchasers, whether direct or indirect.
— Any competition infringement found by a national court or competition authority is iuris et de iure, that is to say, irrefutable in the context of proceedings related to claims for damages. By contrast, where a competition infringement has been established by a court or competition authority from another Member State, the existence of such infringement will be iuris tantum, that is to say, unless proven otherwise, it is presumed that the infringement existed.
— Regarding the statue of limitations of the action for damages, the victim of the competition infringement is entitled to bring a claim within a period of up to five years that starts to run when the infringement ceases or when the victim learns or may have learned of the following circumstances: (i) the conduct and the fact that the latter constitutes an infringement; (ii) the harm caused; and, (iii) the identity of the author of the infringement.
b) The Civil Procedure Act
The Royal Decree has introduced the following matters in the Civil Procedure Act:
— With regard to disclosure of evidence, it is established that national courts, upon the request of the claimant, are entitled to require that the author of the infringement or any third party disclose any relevant evidence they have. Such evidence can refer to the identity and address of the author of the infringement, the anti-competitive practices at issue, the identification and volume of products and services affected by such practices, the identity of direct or indirect purchasers, the prices charged and the identity of the group affected by the infringement.
— Where necessary, the courts may order the disclosure of confidential information and adopt certain measures in order to protect confidentiality (e.g., holding close or limitedaccess hearings, limiting the number of persons in charge of handling evidence, drafting a non confidential version of the judgment, etc.).
— Evidence can be requested before the opening of the proceedings, in the application or during the course of the proceedings. The costs of evidence will be borne by the party requesting the evidence. Where there may be relevant evidence in other files of the national competition authority, the court can order its disclosure provided that: (i) the investigation on the case at issue has been concluded by the authority; (ii) the evidence has not been submitted in the context of a leniency application, and (iii) it is not part of a settlement application.
— Penalties are established in case of failure to comply with a disclosure order, violation of confidentiality or destruction of evidence.
Finally, the Royal Decree includes a provision that establishes that the rules included therein govern the actions for damages brought in Spanish territory, regardless of whether the competition infringement has been declared by the European Commission, the Court of Justice of the European Union or competition authorities or judicial bodies of Spain or any other Member State.
While the Royal Decree has facilitated claiming for damages resulting from competition infringements in Spain, there are still a few issues that remain unresolved. For example, there are still difficulties for the exercise of collective actions and the fees required for filing a claim are increased in case of dismissal of the action.
The deadline for the transposition of the EU Damages Directive expired on 27 December 2016. Spain has fulfilled its obligation to transpose the directive almost five months after the expiry of the deadline. Despite this, Spain has not been the last Member State to comply with its obligation to transpose the said directive. To date, Bulgaria, Czech Republic, Greece, Croatia, Cyprus and Portugal have not yet notified to the European Commission the national measures adopted in order to align their national legal systems to the EU Damages Directive.
