The Spanish Supreme Court ("Tribunal Supremo") has awarded damages to several confectioners which were affected by raw material price increases resulting from the activities of a cartel that took place in the sugar industry during the period 1995-1996. Acor Sociedad Cooperativa General Agropecuaria (Acor), a former cartel member, faced a € 1.1 million pay-out in compensation.
The price-fixing cartel, which affected the sugar market, was dismantled and fined by the Spanish Competition Authority in 1999. In 2007 (a year after the decision was made final further to unsuccessful appeal proceedings), nine injured companies (Acor's clients Nestlé España, S.A.; Galletas Gullón, S.A.; Mazapanes Donaire, S.L.; Zahor, S.A.; Galletas Coral, S.A.; Productos Alimenticios La Bella Easo, S.A.; Lacasa, S.A.U.; Chocolates del Norte, S.A., y Bombonera Vallisoletana, S.A.) lodged a request for damages. Although the relevant Spanish Court of First Instance rejected the claim, the Court of Appeals found the claimants to have proved Acor's liability, awarding them damages totalling around € 1.1 million in October 2009.
The Appeals Court's judgment was challenged by Acor but has now been upheld by the Spanish Supreme Court, which confirmed that Acor was liable for damages. Acor had claimed that the damages actions had been brought out of time, that the defendants had been awarded damages for a period prior to Acor's involvement in the cartel, that the Appeals Court had committed procedural errors (such as not addressing certain arguments), and that the nine confectioners had passed on the extra costs to end customers. The judgment, which was delivered in June 2012 but was only made public in September 2012, dismissed all of Acor's arguments.
This Spanish Supreme Court's pioneer judgment is the first to award damages totalling more than € 1 million in a follow-on action. The judgment dismissed the expert report submitted by Acor but upheld the expert report submitted by the claimants, which had been prepared by the current Spanish State Secretary for Economic Affairs, Fernando Jiménez Latorre. The Supreme Court did not find sufficient evidence that the companies affected by the cartel had passed on the sugar price surcharges to their customers, as Acor claimed.
Although the new Spanish Competition Act, which entered into force in 2007, provides for the first time the possibility of claiming damages arising from a competition law infringement without a prior administrative decision to that respect, successful claims have been scarce. Most such claims arise from abuses of a dominant position, rather than cartel practices. A few of them have been upheld, such as the damages awarded to Canoven and Renta Vencan by the Supreme Court in June 2009 following a competition law infringement by Shell. However, most frequently, courts do not find a direct causal link between the anticompetitive conduct and the injury, or consider that the criteria used for quantifying the damages were incorrect. This was the case in the Supreme Court judgment of April 2009 that brought an end to the controversy between Antena 3 and Liga Nacional de Fútbol Profesional by dismissing Antena 3's claims.
The sugar cartel has given rise to other lawsuits which are still to be settled, such as the action brought by Nestlé, Lacasa, Zahor, Delaviuda and others against Ebro Foods, another former cartel member.
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