On 27 May 2017, following the approval by the Spanish Council of Ministries, Royal Decree-Law No. 9/2017, of 26 May 2017 (“Spanish Decree”) was published in the Spanish Official Gazette, implementing in Spain, amongst others provisions, Directive 2014/104/EU on antitrust damages actions (“Directive”).
The Spanish Decree amends important provisions of the Law No. 15/2007 of July 3, 2007, on the Protection of Competition and Law No. 1/2000 of January 7, 2000, on Civil Procedure.
The Directive aimed at making easier for victims of antitrust violations to claim compensation for the damages they have suffered due to such infringements (the so-called private enforcement).The Spanish Decree reproduces the content of the Directive, with some amendments necessary for a correct transposition into national law.
Although less developed than in other jurisdictions (e.g., the UK, the Netherlands and Germany), private enforcement has been steadily growing in recent years in Spain.
The new legislation is expected to substantially increase the number of claims for damages for antitrust infringements in the country.
The Directive was officially signed into law on 26 November 2014 and published in the Official Journal of the European Union (“EU”) on 5 December 2014.
It was adopted with the aim of making it easier for victims of antitrust violations to claim compensation, by harmonizing the relevant procedures all over the EU. The Directive had to be transposed in the EU Member States’ legal systems by 27 December 2016.
The Directive gives victims easier access to evidence needed to prove the damage suffered and more time to make their claims. This is expected, in particular, to help smaller companies and consumer groups exercise in practice the right to recover their losses stemming from antitrust breaches.
According to the European Commission (“Commission”), the Directive will achieve more effective enforcement of the EU antitrust rules, by ‘fine-tuning’ the interaction between private damages claims and public enforcement. Moreover, it is also designed to preserve the attractiveness of the enforcement tools used by EU and national competition authorities (e.g. leniency and settlement programs).
In particular, the Directive introduced the following new rules to facilitate private enforcement:
- National courts are entitled to order companies to disclose evidence in cases where victims claim compensation for damages;
- A final decision of a national competition authority finding an infringement constitutes proof of that infringement before courts of the same Member State;
- In cases where the contested infringement has caused price increases and these have been ‘passed on’ along the distribution chain, the right to claim compensation is recognised to those who suffered the harm in the end; and
- A clarification is provided of the interplay between court actions and consensual settlements between victims and infringing companies, expected to make settlements easier.
The Spanish Decree largely mirrors this structure of the Directive and expressly introduces a 5-year limitation period for antitrust damages actions.
However, some amendments to the original text of the Directive were necessary for its implementation into Spanish law.
(i) the inclusion of a clear identification of the damages that can be compensated, using the notions provided under Spanish law (i.e. daño emergente, the actual loss, lucro cesante, the loss of profits, and interests);
(ii) some definitions contained in the Directive were not transposed as they are already included in other national provisions, while other definitions had to be articulated further (e.g. the definition of ‘competition law infringement’, which is defined as including both Articles 101, 102 of Treaty on the Functioning of the EU and Spanish Law No. 15/2007 of July 3, 2007, on the Protection of Competition); and
(iii) relevant amendments to the regulation of the Spanish Civil Procedure Law, taking into account the need for the claimant to clearly identify, under national procedural rules, the facts and the evidence that the counterpart may be asked to disclose and new and important confidentiality rules.
RELEVANCE FOR COMPANIES
The implementation of the Directive in Spain is expected to substantially increase private enforcement in the country. In particular, it may help avoid forum shopping issues, as currently certain countries are more favorable to claimants.
Following the final adoption of the Spanish Decree, companies become now more exposed to claims for antitrust damages and face claimants with a strengthened litigation position. This is particularly the case for the disclosure of evidence, which the courts can request from the defendant.
Consequently, the new legislation is likely to incentive claimants to bring damages actions against antitrust infringements in Spain. In particular, cases such as the follow-on damages actions recently brought against truck manufacturers (found to have participated in a cartel) will be more frequent in Spain following the adoption of the Directive.